Join us in wishing a happy birthday to Justice Ginsburg

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            In 1956, Ruth Bader Ginsburg was one of only nine female students at Harvard Law School.  As the American Civil Liberties Union explains on its website, the dean wanted to know why they were taking places that could have been occupied by men.  With hindsight, the answer in Ginsburg’s case is clear: She was preparing to change the world.

Justice Ruth Bader Ginsburg

            Today, in her 20^th year on the Supreme Court, Ruth Bader Ginsburg turns 80.  We’re inviting readers to wish a happy birthday to someone who gives true meaning to the title “Justice.”

            Ginsburg made law review both at Harvard and Columbia (where she transferred for her third year) an unprecedented achievement.  She tied for first in her class at Columbia – and still couldn’t get a job at a law firm.  When she joined the faculty at Rutgers Law School she had to hide her pregnancy for fear of losing the job – that kind of discrimination was legal at the time.

            In 1972, she became the first tenured woman professor at Columbia, where, as Jeffrey Toobin writes in The New Yorker, she co-founded the first law review on women’s issues and co-authored the first casebook on the subject.  That same year she was named the first director of the ACLU Women’s Rights Project.

            Toobin writes that Gisburg “argued several of the most important women’s rights cases in the Court’s history.”  Prof. Susan Deller Ross of Georgetown University Law Center told Toobin that Ginsburg “Helped turn the Court 180 degrees, from a very hands-off attitude, which had often been expressed very cavalierly, to one where they struck down law after law that treated the sexes differently.”

            President Carter named Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit (another reminder of the importance of that circuit) and President Clinton named her to the Supreme Court.

            Justice Ginsburg wrote the majority opinion in United States v. Virginia, which held that it was unconstitutional for the Virginia Military Institute to deny admission to women.  More often, given the nature of the current court, Justice Ginsburg has written in dissent.

            When Justice Anthony Kennedy, writing for a 5-4 majority in Gonzales v. Carhart,  upheld a federal ban on late term abortions in part because he believed “some women come to regret their decisions” even as he conceded he could find “no reliable data to measure the phenomenon” Justice Ginsburg was scathing in dissent.

She labeled the claim “an antiabortion shibboleth for which it concededly has no reliable evidence” yet is used by the majority in a decision that “deprives women of the right to make an autonomous choice, even at the expense of their safety.

“This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited.

Another Ginsburg dissent ultimately became one of her greatest victories.

When the majority denied Lilly Ledbetter the right to sue when she was denied equal pay (a story told in AFJ’s documentary Supreme Injustices), Justice Ginsburg not only read her dissent from the bench, she rewrote it in plain language.

"In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," she said.  Most important, she ended her dissent with an explicit call to Congress to rewrite the law to undo the damage done by the majority.

Congress did just that.  And, as Toobin notes, “In Ginsburg’s chambers there is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009.  It was a gift from the President, who inscribed it ‘Thanks for helping create a more equal and just society.’”

Today, on Justice Ginsburg’s 80^th birthday, we’d like to thank her, too.

Two more perspectives on the Supreme Court and gun control

● Jeffrey Toobin, in The New Yorker, on how members of the extremist majority on the Supreme Court, such as Justice Antonin Scalia, made a mockery of their own professed belief in "originalism" to radically revise the meaning of the Second Amendment:

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

Antonin Scalia

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association ... [which] pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”

But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. ... 

Read the full article here

And hear more from Jeffrey Toobin on a range of other issues in our recent conversation with him.

● The New York Times on how the Supreme Court ruling, written by Scalia, strking down the District of Columbia ban on handguns, while not preventing all gun regulation, further emboldened the National Rifle Association:

The N.R.A., emboldened by a Supreme Court ruling asserting an individual constitutional right to bear arms, has turned its attention to further broadening the market, lobbying state legislatures to allow concealed weapons in churches, schools and other public places and to restrict the discretion of local police in granting gun permits.

Read the full editorial here 

Video highlights from AFJ's Conversation with Jeffrey Toobin

We've put several excerpts from AFJ's Conversation with Jeffrey Toobin on our YouTube page.

In addition to the portion of the discussion dealing with DOMA and Proposition 8 (also available on this Blog here) there's a discussion of the impact of the three women justices on the Supreme Court, and a dialogue about presidents and the court.

There's also the answer to the question: Did Justice Scalia really call Justice Thomas "a nut"?

The entire video is at www.afj.org 

What will the Supreme Court do about DOMA and Proposition 8?

The Supreme Court may decide as early as this afternoon whether to hear one or more cases concerning the so-called Defense of Marriage Act.  It also may hear a case concerning California's Proposition 8.  In this excerpt from AFJ's discussion in New York City last night, AFJ President Nan Aron, Jeffrey Toobin of CNN and The New Yorker, Slate Senior Editor Emily Bazelon and Prof. Kenji Yoshino of New York University School of Law explain the cases and discuss what the Supreme Court might do:

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THE VIDEO IS ONLINE NOW: Did you hear the one about what Justice Scalia called Justice Thomas?

If not, it means you missed AFJ's Conversation with Jeffrey Toobin this evening.  But the video is now online at www.afj.org.

Among the other topics: What the court might do, as early as tomorrow, concerning gay rights cases, (that discussion starts about 1 hour and 9 minutes in) why the left does not care as passionately about judges and the courts as the right - and why  that might be about to change - and the paradox of Barack Obama, a former constitutional law professor who put less emphasis on judges than one might expect as president.

As AFJ President Nan Aron pointed out, almost every moment of our lives is shaped by decisions of the Supreme Court.

From left to right: Alliance for Justice President Nan Aron, Jeffrey Toobin,
Emily Bazelon and Prof. Kenji Yoshino

Join us tonight – in person or online – for A Conversation with Jeffrey Toobin

Jeffrey Toobin

The current term of the U.S. Supreme Court is just over two months old, and already the Court has heard arguments on affirmative action inhigher education and accepted a case challenging a key provision of the VotingRights Act.  Tomorrow the Court may decide which, if any, gay rights cases it will hear.

Concerning the latter, SCOTUSblog’s Tom Goldstein has written that “I have never before seen cases that I believed would be discussed two hundred years from now.”

So there is no better time than tonight – at 6:30 p.m. to be precise -  to bring together four leading experts to discuss the Supreme Court and the justices.  That’s just what Alliance for Justice has done.

AFJ president Nan Aron will lead “A Conversation with Jeffrey Toobin,” legal analyst for CNN and The New Yorker and author of The Oath: The Obama White House and the Supreme Court.  They will be joined by Emily Bazelon, senior editor of Slate and Prof. Kenji Yoshino of New York University School of Law.

If you can’t be at the event in New York, you can still be a part of it.  We’re live streaming  from our homepage and hosting a discussion on our Facebook page – where you can add your own comments.  We might use some of them when we report on the event back here on Friday.  You also can take part in the discussion via Twitter (#AFJustice).

So please join in the conversation tonight.

Jeffrey Toobin on reforming the Senate to get judges confirmed

Jeffrey Toobin, author and legal analyst for The New Yorker and CNN (and guest at a big AFJ event in New York City in December) has an important column on the New Yorker website today on the urgent need to reform Senate rules.

Jeffrey Toobin

In particular, he endorses a proposal that would curb the filibuster, which has been used by Senate Republicans to block almost every major Obama administration initiative.  As is discussed in detail in the previous post, it’s also contributed to a critical shortage of judges, because it’s been misused to block the confirmation of federal judges – even those who are considered noncontroversial.

There are a number of proposals kicking around at the moment.  Toobin singles out what may be the most elegant: require that Senators who want to filibuster do it the old fashioned way, by standing up and talking – and talking, and talking for as long as they can hold out – the way Jimmy Stewart did it in Mr. Smith Goes to Washington.  That might contribute to restoring the filibuster to its intended purpose – blocking the occasional piece of legislation that the minority party considers truly egregious. Toobin writes:

The theory behind their idea is that the requirement to stand up and filibuster would create a real deterrent to the profligate use of the tactic. It’s a modest change—filibusters would still exist—but a useful one.

Though Toobin doesn’t mention it, this change also would make the misuse of the filibuster to obstruct the work of the Senate more visible – and audible – to the American people.  They could watch Senate business grind to a halt as Senators filled hour after hour on C-SPAN for days at a time.

Toobin concludes:

Senate leaders tend to be institutional conservatives, who worry, with some justification, that their party will be in the minority some day. But Republican obstruction has become such an obstacle to legislative progress that the risk seems worth taking.

This is especially true because judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.

If you’d like to ask Jeffrey Toobin about this yourself, or hear more from him on this topic, the current state of the Supreme Court and other concerns, please join us in New York City on the evening of Dec. 6, when he discusses these issues with AFJ President Nan Aron.  The event is free, and you can register here.

Supreme Power

Over breakfast this morning, Alliance for Justice hosted a discussion between author Jeff Shesol and retired U.S. Court of Appeals Judge Patricia Wald about the relationship between the President of the United States and the Supreme Court.

Many of us have heard the phrase “the switch in time that saved nine,” but know little about the true story behind President Franklin D. Roosevelt’s court packing plan. In his new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol chronicles the power struggle between President Roosevelt and the Supreme Court following the passage of the New Deal — and the Court declaring parts of it unconstitutional.

After watching many of his reforms encounter stiff opposition from the “Four Horsemen” who made up the politically-savvy and conservative wing of the Supreme Court, Roosevelt decided to take action. Since the justices had lifetime appointments and could not be easily removed, Roosevelt decided that the answer was the Judiciary Reorganization Bill of 1937. The Constitution does not specify how many justices sit on the Supreme Court, so the bill sought to add an additional justice to the Supreme Court for every sitting justice over the age of 70. This would have resulted in Roosevelt adding six new judges to the Court -- raising the number of members of the Court from 9 to 15 -- and ensuring sufficient support for Roosevelt’s massive social reform legislation.

When the plan was conceived in 1937, Roosevelt had recently won reelection by a landslide and the Court was deeply unpopular. Roosevelt publicly justified the addition of six justices by explaining that elderly judges throughout the country were unable to keep up with the workload, and court dockets were suffering as a result.

Unfortunately for Roosevelt, the facts did not support his unsubstantiated claim of judicial overload. Mainstream newspapers were almost unanimous in their condemnation of the idea and the plan was hailed as a great idea by the Nazi press in Germany. The American public sent thousands of displeased telegrams to Congress. Ultimately, support for Roosevelt’ position eroded. While many shared Roosevelt’s displeasure with the Court’s conservatism, tampering with the institution seemed even to many liberals to represent excessive presidential power and a threat to the Constitution.

Roosevelt’s refusal to compromise his plan of adding six justices (Shesol notes that he may have been able to successfully add two, or even four seats to the Court), was a severe political miscalculation for the president. Luckily for Roosevelt, beginning in mid-1937, a number of conservative justices retired, providing the president with the opportunity to appoint several new justices who transformed the ideological balance of the Court.

Our thanks to Jeff Shesol and Judge Wald for a fascinating morning. Photos of the event can be found by clicking here. To learn more about the true story behind the court packing plan, you can watch Shesol speak about his book with Jeffrey Toobin on c-span.