Saturday, November 5, 2011

Justice Ginsburg


California Lawyer (November 2011) has an excellent interview with Justice Ruth Ginsburg.  Below is my favorite part: 

Q. I'd like you to talk a little bit about the cases that I've spent my life studying, the key gender cases that began in the 1970s, which you litigated and wrote amici briefs for. The 14th Amendment, which guarantees equal protection under the law, had been settled interpretation for, I think, 104 years. What made you think that you could get the courts to overrule more than a century of precedent?

A: The times. The Court is a reactive institution. It's never in the forefront of social change. When you think of Brown v. Board of Education, it was not only that Thurgood Marshall was a brilliant lawyer. It was the tenor of the times. We had just fought a war against an odious form of racism, and yet our troops through most of World War II were separated by race. Apartheid in America really had to go. Similarly, by 1970 the women's movement was revived, not just in the United States but all over the world. As a great legal scholar once said, the Court should never react to the weather of the day, but inevitably it will react to the climate of the era, and the climate was right for that change.

Perhaps, at least in a peaceful society, all good things come to those who wait?  I've sometimes wondered whether the Supreme Court's decision upholding Muhammad Ali's conscientious objector status would be the same if the case had arrived at the Court a few years earlier. In one article I read--it was from Men's Journal (Nov 2011)--the author wrote that the Supreme Court was set against Ali until a law clerk gave them a copy of Haley's Autobiography of Malcolm X. After reading the book, the Court allegedly had a change of heart. True or not, the anecdote demonstrates that the law, so long as it relies on interpretation by men and women, necessarily intersects with their bias.

In any case, regarding the efficacy of the Constitution against government tyranny--whether slavery, Jim Crow, Japanese internment camps, Abu Ghraib, etc.--I'll leave you with this Lysander Spooner quote: "But whether the Constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it." [Updated on 3/25/12]

Bonus: see also "When Mass Murder and Theft of All Human Rights Were 'Legal': The Nazi Judiciary and Judges," by Hon. Richard D. Fybel, California Litigation, Vol. 25, No. 2, 2012, page 15-21.  He discusses Nazi Germany and the judicial branch's politically-convenient prostration before Hitler.

Update on 6/7/14: The Trials of Muhammad Ali (2013) includes an interview with a Supreme Court law clerk who worked on Ali's conscientious objector case. The Supreme Court almost dismissed the case but sent it back for review because a new wiretap issue arose (the government admitted to spying on conversations between MLK and Ali). Then, when the case returned to the Supreme Court after three and a half years, the preliminary vote was against Ali 5 to 3 until Thomas G. Krattenmaker, Justice Harlan's law clerk, argued--many times to Harlan--that the Nation of Islam should be treated the same as Jehovah's Witnesses who believed that only God may compel the followers to war and no one else. After reading the Autobiography of Malcolm X (1965) and Message to the Blackman in America (1965), he convinced Justice Harlan, who switched his vote, making it 4 to 4.  However, a deadlocked 4-4 vote would have put Ali in jail for 5 years and generated no substantive written opinion explaining the Court's rationale.  Then Justice Potter found precedent to rule in a narrow way that applied only to Ali based on denial of due process, which permitted the government to continue with its draft while allowing only Ali to file for C.O. status (rather than every single Nation of Islam member or prospective member). The revised opinion resulted in a unanimous 8 to 0 decision (Justice Thurgood Marshall recused himself because the NAACP Legal Fund was involved). The Court ruled Ali was denied due process because the government argued that he was insincere in his religious beliefs at the Draft Board yet later told the Supreme Court it believed Ali was sincere. And just like that, history was made. Without Krattenmaker, Harlan, and Potter, Ali goes to jail, never reclaims the title, and never raises the torch at the '96 Olympics.

BonusInterview with California Supreme Court Justice Stanley Mosk (1998):

LaBerge: [H]ow do you think both you and just the court in general can influence social policy, or vice versa, does social policy influence the decisions?

Mosk: Well, theoretically, we should be governed solely by the law and not by individual concepts of rights and duties.  But inevitably, individual rights do enter into opinions that may be written.  Whether that's good or bad, effective or ineffective, is always debatable.  [pp. 84]

Mosk: I have a certain sympathy for individuals in our society.  Our society has grown so large and impersonal that I think we sometimes have the tendency to overlook an individual's rights and obligations. [pp. 85]