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Sunday, August 25, 2013

SCOTUS and High Court Activism

Ruth Bader Ginsburg in 1953
By: Timothy P. Flynn

Three years ago, when sworn into the SCOTUS Bar in Washington, D.C., I was lucky enough to get a seat toward the front of the Court's chamber to observe the nine Justices, all still on the court today, up-close and personal. Literally, to the far left on the bench was a diminutive woman; Justice Ruth Bader Ginsburg.

Appointed in 1993 under President Clinton, Justice Ginsburg just recently turned 80. When I saw her listen as the High Court's newest opinions were read to the gathered public a few years ago, she was slouched over in her big black leather chair as if asleep.  Later in the session, I realized she was listening closely and taking notes.

At 80, Justice Ginsburg is sharp, on her game, and regularly in the legal news.  Physically, while she admitted wistfully to the New York Times that her "water-skiing" days are over, she is a  proud survivor of cancer [twice] who has maintained a clean bill of health from the National Institute of Health; the NIH tracks her soundness very closely.

SCOTUS retirement politics runs in cycles across the decades, as Justices age and retire or, rarely, die on the bench like Justice William Rehnquist in 2005.  In the late 1990s, for example, rumors circulated every fall about the health of Justice William Brennan, Jr. who remained on the bench well into his eighties.

It seems that when a Justice hits 80, with a president in the White House that has compatible jurisprudential views, legal scholars and politicians of the same bent emphasize the significance of a compatico-appointment; get while the gettin's good, so to speak.  This is now happening to Justice Ginsburg who, amid a growing chorus to step-aside, states publicly that having a Democrat in the White House will not factor into her decision when to retire.

Justice Ginsburg went on a bit of a publicity tour this spring, giving speeches and interviews to Tier One law schools, lawyers' groups and newspapers on the seminal decisions of the 2012 term.  Of particular note, Justice Ginsburg commented on the same-sex marriage DOMA decision, saying she did not think SCOTUS should create a constitutional right to gay marriage, like the High Court did with abortion in Roe v Wade in 1973; far too activist she says.

A little-known secret to those outside the legal industry is that Justices do not always pan-out according to the hopes and wishes of the President that appoints them.  President Regan's appointment of Justice Anthony Kennedy, the centrist on the current SCOTUS, is the most notable example of recent decades.

Not so with Justice Ginsburg.  President Clinton knew her liberal roots were sunk deep and she has not disappointed.  Justice Kennedy's "swing-vote" centrism, and Justice Ginsburg's senior liberalism is what gives the current Court it's 5-4 flavor on the seminal cases it has been deciding over the past few years.

Every fall, as the High Court begins its work of listening to the oral arguments of the selected cases, and drafting the decisions opinions, there is perennial commentary about the degree of activism of the Court. According to Justice Ginsburg, the Roberts' Court is among the most activist she has seen during her tenure on the bench.

Liberals fear that unless Justice Ginsburg steps-down soon, a Republican President may likely have the opportunity of appointing a conservative justice mid-decade.  These are the ways politics affect our delicate social fabric on the major legal issues of our time.

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