“One of the things that makes the Supreme Court so interesting as an institution,” says LSA Dean Andrew D. Martin, whose area of expertise is judicial decision making, “is that almost every political issue we have in the United States ultimately ends up there.”
And for more than 20 years, since she took her seat in 1993 after being nominated by President Clinton, Supreme Court Justice Ruth Bader Ginsburg has been an important voice in shaping—and questioning—the court’s decisions. Never one to shrink from a challenge, Ginsburg and her pointed opinions have earned her admiration, respect, and even one notoriously popular Tumblr. In honor of her visit to campus for this year’s Tanner Lecture, LSA spoke with Dean Martin about Ginsburg’s role on the court and her place in history.
The political makeup of the Supreme Court has changed a lot since Justice Ginsburg was appointed. Has her role on the court changed in that time?
Andrew D. Martin: Not really. When you read her opinions, she makes strong arguments and doesn’t pull any punches. She was writing a lot more majority opinions early in her career than later in her career, but she’s been unwavering in advocating for a core understanding of what our Constitution means in contemporary society.
You work with Professor Kevin Quinn at the UC-Berkeley School of Law on the Martin-Quinn scores, a project that measures the relative location of U.S. Supreme Court justices on an ideological continuum. Where does Justice Ginsburg fall on that continuum?
ADM: She’s on the left, and the U.S. Supreme Court today is just as polarized as American society is. We have four justices who are quite conservative, we have four justices who range from liberal to quite liberal, and then we have Justice [Anthony] Kennedy right in the middle. He’s what we call in political science the “median” justice, and on lots of important political issues, his vote is the decisive one. I would suspect that in the gay marriage case, for example, his vote will be pivotal, and I wouldn’t be surprised if he ended up writing the majority opinion in that case.
Justice Ginsburg has always been on the left, which is not surprising given her background and the issues she cared about in her life before she became a judge. Today, we think she and Justice Sotomayor are the most liberal justices on the Supreme Court.
What is the dynamic between interpretation of the law and political allegiance as a Supreme Court justice?
ADM: The thing that makes the job of a Supreme Court justice so difficult is that in almost every dispute that comes to the court, the law is not clear. If the law were clear, a case would never end up coming to the Supreme Court; everyone would agree what the law meant, and judges would figure out what the facts were, apply the law, and cases would be over. Of course, if the law is perfectly clear, you’re never even going to get to court unless there are big disagreements about what the facts are.
So, the questions Supreme Court justices have to answer have no clear answers. When there are no clear answers, it’s not surprising that things like one’s politics and life experiences and so forth come into the decision-making process. That’s entirely appropriate for a judge, particularly on an appellate court, and that’s why we tend to see justices of particular political persuasions nominated by presidents around how they agree or disagree about fundamental political and legal issues.
Prior to the Tanner Lecture, U-M solicited questions for Justice Ginsburg from the public. If you could ask her one question, what would it be?
ADM: The question would be, “How have the personal relationships and the way in which the Supreme Court works as a nine-person team changed over your time at the court, and have there been times when collegiality has really broken down?”
One of the justices with whom Justice Ginsburg has a close personal relationship is Justice [Antonin] Scalia, which is fascinating on one level but also comforting on another. Because the media in this country has fragmented as much as it has, there’s less and less talk across the political aisle. As recently as the 1980s and certainly before that, American politicians would disagree about fundamental issues and have knock-down, drag-out debates both in the House and the Senate, they’d have contested elections, they would give these difficult media interviews where they're yelling at each other, and then they'd go out and have a drink afterward and get to know each other personally. So, it’s comforting to know that in an institution like the Supreme Court, where the most important political and legal issues of the day ultimately come to be resolved, the nine people who work there—at least in what we can see publicly and can read about in secondary sources—work together as a group in a very respectful manner and have deep personal and professional relationships.
One could hypothesize that there were a few instances—the Obamacare decision would have been one, and Bush v. Gore would have been another—when you might expect that collegiality to have broken down a bit. Justice Ginsburg’s experienced being on the court so long that she’s seen lots of people come and lots of people go. Of course, whenever you change a team, dynamics change. I would be interested to know how collegiality has changed on the court during her time.
What do you see as Justice Ginsburg’s legacy?
ADM: I think Ruth Bader Ginsburg’s legacy will involve her time on the U.S. Supreme Court, but I think her legacy is going to be about a lot more than just being a Supreme Court justice. One of the things about her that’s so fascinating is that she had a very distinguished career as a lawyer before she came to the court. Most significantly, when she was legal director for the ACLU, she led a litigation strategy to really support women’s rights and fundamentally transform the law in the United States.
I think her legacy—which is yet to be realized in this country and I hope will be in my lifetime—is a legacy about equality for women, and the way in which she used her legal acumen as an advocate and then served our country honorably as a justice on the U.S. Supreme Court. Those are the issues that’s she's been most publicly advocating for the entirety of her career, and I think that the way in which the law treats women today and hopefully the way the law will continue to treat women in the future, that’s what her legacy will be.
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