The Volokh Conspiracy - Justice Ginsburg Speaks:

In Thursday's New York Times, Linda Greenhouse had a very interesting essay on how outspoken Justice Ginsburg has become in her dissents, particularly in cases that touch on the Supreme Court's role in the political system:

The justice's acquaintances have watched with great interest what some depict as a late-career transformation. "Her style has always been very ameliorative, very conscious of etiquette," said Cynthia Fuchs Epstein, the sociologist and a longtime friend. "She has always been regarded as sort of a white-glove person, and she's achieved a lot that way. Now she is seeing that basic issues she's fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court."

Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.

I'm just speculating, of course, but my tentative guess is the same as Debra Ness's: "She's sounding an alarm and wants people to take notice." It's the same reaction I had to Ginsburg's warning about the Term back in January.

The question is, why? One theory is that Ginsburg's goal is the same as Justice Blackmun's near the end of his career: to influence the outcome of the next Presidential election by rallying the troops. In his Planned Parenthood v. Casey dissent, in 1992, Justice Blackmun seemed to be speaking to voters: "I am 83 years old," Blackmun wrote. "I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Get the hint? A year later, Clinton was elected, and within two years Blackmun and Justice White had resigned and been replaced with Ginsburg and Stephen Breyer. This is just speculation, obviously, but I wonder if Ginsburg has Blackmun's efforts in mind. (Of course, if true, that doesn't mean Ginsburg herself is considering retiring after the next election; she may just want to influence the political system to increase the chances that future colleagues share her views.)

	[Orin Kerr, June 2, 2007 at 3:57pm] Trackbacks Justice Ginsburg Speaks: In Thursday's New York Times, Linda Greenhouse had a very interesting essay on how outspoken Justice Ginsburg has become in her dissents, particularly in cases that touch on the Supreme Court's role in the political system: The justice's acquaintances have watched with great interest what some depict as a late-career transformation. "Her style has always been very ameliorative, very conscious of etiquette," said Cynthia Fuchs Epstein, the sociologist and a longtime friend. "She has always been regarded as sort of a white-glove person, and she's achieved a lot that way. Now she is seeing that basic issues she's fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court." Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her. I'm just speculating, of course, but my tentative guess is the same as Debra Ness's: "She's sounding an alarm and wants people to take notice." It's the same reaction I had to Ginsburg's warning about the Term back in January. The question is, why? One theory is that Ginsburg's goal is the same as Justice Blackmun's near the end of his career: to influence the outcome of the next Presidential election by rallying the troops. In his Planned Parenthood v. Casey dissent, in 1992, Justice Blackmun seemed to be speaking to voters: "I am 83 years old," Blackmun wrote. "I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Get the hint? A year later, Clinton was elected, and within two years Blackmun and Justice White had resigned and been replaced with Ginsburg and Stephen Breyer. This is just speculation, obviously, but I wonder if Ginsburg has Blackmun's efforts in mind. (Of course, if true, that doesn't mean Ginsburg herself is considering retiring after the next election; she may just want to influence the political system to increase the chances that future colleagues share her views.)