There were many interesting comments to my post on Justice Ginsburg and Legislative Independence. I responded to many of them in the comment thread late last night, but I wanted to add an additional response to the many who thought it was perfectly fine for Justice Ginsburg to use her dissent to try to get Congress to respond by enacting new legislation more to her liking. In particular, I want to switch the politics just to make sure we all have the same position of the merits.

  Commenters had four basic arguments for why Justice Ginsburg may have behaved properly. First, anyone can try to influence the legislative process, so it's okay for Justices to try to do this as well. Second, Justices are smart people "on the front lines" of the law, so it's good that they are generally interested in sharing their wisdom to improve it. Third, Justice Ginsburg's remarks should be read as really just making a comment on the state of the law, which is something that we generally find unobjectionable. Fourth, it is appropriate for a Justice to take extra steps to inform Congress that their will might have been thwarted, just to let them know so they can take corrective action.

  I responded to each of these arguments in depth in the comment thread, but I wanted to add one more thought experiment into the mix: What if the politics of the case had been reversed, and it was Justice Scalia who was engaging in this conduct instead of Justice Ginsburg?

  Let's imagine the year is 1987, and the Supreme Court is deciding a case that is somewhat similar to Ledbetter, Johnson v. Transportation Agency. In that case, the Santa Clara County government had enacted an affirmative action plan allowing the government to provide preferences/affirmative action for women in hiring. A man challenged the program on the ground that Congress has clearly and directly stated that " "It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" The Justices meet at conference and a majority vote to allow the program despite the plain meaning of the statute. Justice Brennan is the senior-most Justice in the majority, and he assigns himself the majority opinion.

  Now let's focus on the response of Justice Scalia, who thinks that Brennan's decision is a completely bogus and result-oriented interpretation of the statute. Congress's statute could not have been clearer, and the Court is defying Congress's will and trying to gut a very important law. So Scalia writes a blistering dissent explaining why the majority's interpretation of the law cannot be squared with what the law actually says. (And indeed, that is exactly what Justice Scalia did.)

  But let's say Justice Scalia decides to do more. Let's imagine that he decides that he wants to try to "propel" the legislature to pass a new law banning affirmative action in the workplace. He thinks carefully about how he can best use his opinion to try to get Congress to ban affirmative action, and he devises the following plan. First, he will explicitly suggest that Congress should consider banning affirmative action in response to the Court's decision, noting in his dissent that "the ball is now in Congress's court" after the majority thwarted its goals. Second, he will read his dissent from the bench to maximize press coverage and draw immediate attention to his cause.

  After the decision is handed down, Justice Scalia follows the Congressional response with interest. He publicly expresses his pleasure when Republicans in Congress introduce bills to ban affirmative action. "That is just what I contemplated when I wrote my dissent," he tells a sell-out crowd at the annual Federalist Society convention. But he then notes with apparent displeasure that Democratic leaders in the Senate have "clouded" the prospects of the bill by saying that they don't want to bring it to a floor vote.

 : I think this hypothetical is pretty much the same as what Justice Ginsburg is doing, just with the political valence reversed. So let's return to the defenses of Justice Ginsburg and see if they hold up with Justice Scalia in the hotseat instead. If Justice Scalia had in fact taken these steps in response to Brennan's opinion in Johnson, would we say that Justice Scalia is a smart guy "on the front lines" of the law, and that we are lucky to benefit from his experience and learning? Would we say that Scalia's behavior was perfectly okay because anyone can try to influence the legislative process? Would we interpret his efforts as being simply to "notify" Congress, just in case they missed the decision, or that he was simply expressing his view that affirmative action is a bad idea?

  These are questions for each reader to answer. But I suspect many readers inclined to defend Justice Ginsburg now would share my own view that the answers would be "no, no, no, and no." Such conduct from Justice Scalia would be simply outrageous. Scalia's job is to decide cases, not to try to use his official position to get Congress to pass laws that he likes. Granted, Justice Scalia is entitled to his own opinion as to whether affirmative action is good or bad. But I think it would be deeply troubling if he saw it as within his official role as a Justice to try to get Congress to pass a new law clearly banning affirmative action after he didn't have the votes to achieve that result in the Johnson case.

  So here's my question for commenters who defended Justice Ginburg's efforts: Do you have the same reaction to Justice Scalia's (hypothetical) efforts to get Congress to overrule Johnson? Or do you agree with me that such conduct would be quite troubling? If you support Justice Ginsburg but would oppose the hypothetical Scalia, what's the principled difference?