When Justice Ginsburg gave her grandstanding oral dissent in the Title VII Ledbetter case at the end of May—which included her remarkable invitation to Congress “to correct this Court’s parsimonious reading of Title VII”—I criticized her political activism:
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.
As Orin Kerr nicely discusses on the Volokh Conspiracy, a recent speech by Justice Ginsburg highlights the basis for my critique. In her speech, Ginsburg concedes, or rather boasts, that the purpose of her Ledbetter dissent was “to attract immediate public attention and to propel legislative change,” and, speaking of “corrective” bills thereafter introduced in Congress, she says that the “response was just what I contemplated.”
Kerr’s critique is worth quoting at length, including for his reflections on judicial independence:
If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She’s watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less-than-pleased that President Bush has “clouded” the prospects of the bill’s passage by threatening a veto.
I find this explanation troubling. It seems to me that a Justice’s job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn’t part of the job description.
To be clear, it’s not newsworthy that Supreme Court Justices have and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push co-equal branches of government to enact a new law that will be more to her personal liking.
This view seems hard to square with Justice Ginsburg’s frequent invocations of “judicial independence,” the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators — particularly conservatives — who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary. See generally Ruth Bader Ginsburg, Judicial Independence: The Situation of the U.S. Federal Judiciary, 85 Neb. L. Rev. 1, 7-13 (2006).
But shouldn’t this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation? I don’t mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn’t surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that’s true, doesn’t it mean Justice Ginsburg’s argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the Court? I don’t see how you can have it both ways.