Bench Memos

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More of Justice Ginsburg’s Political Activism


I’ve criticized (as has Orin Kerr on the Volokh Conspiracy) Justice Ginsburg’s use of her dissent in the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co. to call for Congress to override the Court’s ruling. 


Undoubtedly buoyed by Congress’s legislative reaction to Ledbetter (a reaction that, as Hans Bader documents, rested heavily on a distorted account of the Court’s ruling), Ginsburg is at it again.  Today, she dissented from the Court’s 5-4 ruling on a Voting Rights Act issue in Bartlett v. Strickland.  (Roger Clegg discusses the Court’s ruling on The Corner.)  Beyond joining Justice Souter’s dissent, Ginsburg wrote a four-sentence dissent in which she states:


Today’s decision returns the ball to Congress’ court.  The Legislature has just cause to clarify beyond debate the appropriate reading of §2.


And if that tired and confused tennis metaphor sounds vaguely familiar, perhaps it’s because Ginsburg used it in her Ledbetter dissent:  “Once again, the ball is in Congress’ court.  As in 1991, the Legislature may act to correct this parsimonious reading of Title VII.”  (I also find ridiculous the punctuation of the possessive form of “Congress”, but Ginsburg’s style, alas, is a common one.)


As I put it in discussing Ginsburg’s Ledbetter dissent:


What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way?  I suppose that it’s no wonder that a justice who can’t separate judging from politics—and whose decisionmaking routinely indulges and entrenches her own political preferences—would see no reason to refrain from advising Congress how to carry out its legislative function. 

Tags: Whelan


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