Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term
WASHINGTON — Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said. “‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
Her colleagues have said nothing in public about the presidential campaign or about Mr. Obama’s stalled nomination of Judge Merrick B. Garland to the Supreme Court. But Justice Ginsburg was characteristically forthright, offering an unequivocal endorsement of Judge Garland. “I think he (Judge Garland) is about as well qualified as any nominee to this court,” she said. “Super bright and very nice, very easy to deal with. And super prepared. He would be a great colleague.” Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate. “That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.” The court has been short-handed since Justice Antonin Scalia died in February, and Justice Ginsburg said it will probably remain that way through most or all of its next term, which starts in October. Even in “the best case,” in which Judge Garland was confirmed in the lame-duck session of Congress after the presidential election on Nov. 8, she said, he will have missed most of the term’s arguments and so could not vote in those cases.
Justice Ginsburg, 83, said she would not leave her job “as long as I can do it full steam.” But she assessed what is at stake in the presidential election with the precision of an actuary, saying that Justices Anthony M. Kennedy and Stephen G. Breyer are no longer young. “Kennedy is about to turn 80,” she said. “Breyer is going to turn 78.”
For the time being and under the circumstances, she said, the Supreme Court is doing what it can. She praised Chief Justice John G. Roberts Jr. “He had a hard job,” Justice Ginsburg said. “I think he did it quite well.” It was a credit to the eight-member court that it deadlocked only four times, she said, given the ideological divide between its liberal and conservative wings, both with four members.
One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedent that allowed public unions to charge nonmembers fees to pay for collective bargaining.
Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.
She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writings suggested that he might have found the argument attractive. “That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.
The big cases the court did decide, on abortion and affirmative action, were triumphs, Justice Ginsburg said. Both turned on Justice Kennedy’s vote. “I think he comes out as the great hero of this term,” Justice Ginsburg said. The affirmative action case, Fisher v. University of Texas, was decided by just seven justices, 4 to 3. Justice Elena Kagan had recused herself because she had worked on the case as United States solicitor general. But Justice Ginsburg said the decision was built to last. “If Justice Kagan had been there, it would have been 5 to 3,” she said. “That’s about as solid as you can get.”
Justice Kennedy had only once before voted to find an abortion restriction unconstitutional, in Planned Parenthood v. Casey in 1992, when he joined Justices Sandra Day O’Connor and David H. Souter to save the core of Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
Asked if she had been pleased and surprised by Justice Kennedy’s vote in the Texas case, Justice Ginsburg responded: “Of course I was pleased, but not entirely surprised. I know abortion cases are very hard for him, but he was part of the troika in Casey.” Justice Breyer wrote the methodical majority opinion in the Texas case, and Justice Ginsburg added only a brief, sharp concurrence. “I wanted to highlight the point that it was perverse to portray this as protecting women’s health,” she said of the challenged requirements. “Desperate women then would be driven to unsafe abortions.” The decision itself, she said, had a message that transcended the particular restrictions before the court. “It says: ‘No laws that are meant to deny a woman her right to choose,’” she said.
Asked if there were cases she would like to see the court overturn before she leaves it, she named one. “It won’t happen,” she said. “It would be an impossible dream. But I’d love to see Citizens United overruled.” She mulled whether the court could revisit its 2013 decision in Shelby County v. Holder, which effectively struck down a key part of the Voting Rights Act. She said she did not see how that could be done. The court’s 2008 decision in District of Columbia v. Heller, establishing an individual right to own guns, may be another matter, she said. “I thought Heller was “a very bad decision,” she said, adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.
Should Judge Garland or another Democratic appointee join the court, Justice Ginsburg will find herself in a new position, and the thought seemed to please her.“It means that I’ll be among five more often than among four,” she said.