Justice Ginsburg Urges Congressional Action Once Again:
As Ed Whelan points out, Justice Ginsburg's brief dissent in Bartlett v. Strickland has a Ledbetter-like call for Congress to overrule the Court's opinion because she believes the majority opinion "severely undermines" the "estimable aim" of the Voting rights Act of 1965:
I join JUSTICE SOUTER’s powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality’s interpretation of §2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute’s estimable aim. Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2.We've had a debate on this sort of dissent before. I remain of the view that it's a pretty troubling practice if the Court wants to maintain its judicial independence.
Ginsburg is free to petition her congressman to change the law. Maybe if she gave him a million $ or so, he would listen.
And, given the experience, why would anyone want to provoke it again? I'll make my concession to the shortness of life and move on.
It's comments like yours that make blogging so personally rewarding. Have a great day!
I have wondered if you feel the same way about the dicta in United States v United States District Court, suggesting that Congress might legislate in a particular area carved out from the scope of the holding:
In other words, do you object to such dicta absolutely, or do you think there is there an acceptable way for a court to communicate such suggestions?
Justice Ginsburg might want to reconsider her admonition to Congress.
I'm not a fan of that passage in Keith, but it is very different from what Justice Ginsburg is doing. In Keith, the Court was giving hypothetical constitutional rulings, telling the legislature what it would allow or not allow the legislature to do. Justice Ginsburg's opinions have nothing to do with the Constitution: Her recommendations are based on what she sees as good public policy.
(Indeed, if Rick Hasen is correct, Ginsburg may be recommending that Congress pass a statute that is unconstitutional.)
In contrast, her previous complaint was that a specific legislative move to "correct" the Court's interpretation was not producing a result that coincided with her preference. In my view, that crosses the line into involvement in political matters.
Ginsburg doesn't ask Congress to clarify what it meant in 1965: she asks Congress to clarify the "appropriate" meaning of the statute. I assume she means "appropriate" in the sense of "best from a standpoint of public policy."
I am just curious, in what ways do you think it would be appropriate and legitimate for Congress or the Executive to undermine the independence of the judiciary in response to comments like these? Do such comments written in dissents justify such actions, or must such comments appear in majority opinions?
After all, the losing side certainly consider their interpretation to be the one intended by Congress. Thus, whether they say so explicitly or not, they should expect Congress to rewrite the law so that its actual interpretation matches the (supposed) intended one.
Of course, "Congress" is no more a body of single mind than the "Court" is. In other words, what Congress intended 40 years ago and what today's legislators believe is best are separate issues.
Calling on Congress to overrule your colleagues because you disagree with the policy results of the ruling is bad manners -- it is not the function of the court to disagree about policy. Calling on Congress to "overrule" your colleagues because you disagree with the statutory interpretation is entirely proper.
I didn't understand that view the first time around, so I'll just incorporate my previous incomprehension by reference, as if set forth herein.
But here's a question: Does it violate the separation of powers for the Executive to recommend legislation to the Legislature? If not, then why is there an issue when the Judiciary recommends same?
Okay, two questions. (2): What if the recommendation were in an opinion of the Court, not a dissent -- same concerns? Why or why not?
The Court's disagreement was about the interpretation of a statute that isn't explicit. Her call for Congress to clarify the meaning of the statute (and her implicit request for it to clarify in her prefered direction) might be considered be bad judicial manners. That's basically my view: I think her plea ended up sounding plaintive, like sour grapes. (One suspects that's why it wasn't a footnote in Souter's dissent.)
But I don't think such requests for clarity are categorically inappropriate, and I really don't see any threat to separation of powers.
The substantive provisions of the VRA does apply to everyone. It's only the preclearance provisions that apply only to those with a history of minority vote discrimination.
Question: Why does the Constitution specifically mention the president (art. 2, sec. 3) recommending legislation, but not the judiciary?
I'm terribly interested in this case and would like to comment further, but I can't since my moot court problem is a § 1973 issue and I'm subject to a gag order until I'm eliminated.
I am not making an argument about the constitutional requirements of the separation of powers: I am making an argument about propriety. I don't think judges or Justices have any business trying to influence the legislative process. They're not legislators, and they shouldn't see themselves as legislators. It's an abuse of the judicial process for judges to try to use the opinion process as a bully pulpit to try to get other branches of government to take action that more closely aligns the law with their personal policy preferences. And it's particularly ironic coming from Justice Ginsburg, who is a fierce critic of legislators using the lawmaking process to try to influence the outcome of judicial procedures.
I realize that this reflects a particular vision of what judge should be. Some people affirmatively want their judges to be legislators, and think it's fine for them to legislate either directly through their decisions or indirectly through their influence on Congress. I disagree with that view, and my take on things follows from that.
As for the executive's involvement in the lawmaking process, that's pretty difference: The executive is involved in the lawmaking process because the constitution gives the President the veto power; the Constitution doesn't give judges the same hand in things.
And as for dissents vs. majority opinions, I don't see a difference.
I just don't see RBG's statements as "bully pulpit". She thinks the Court has badly misconstrued Congress' intent (inasmuch as such a thing exists) and that Congress ought to make their intent plainly clear one way or the other.
The fact that she believes that the clarification of Congress' intent would be "on her side" is immaterial. She's entitled to believe that because she thought that was Congress' intent in the first place. The only thing she seems to be calling for here is for Congress to read the decision and decide if the Court correctly constructed the statute or not.
As a generally matter, it would be quite wonderful if Congress kept an eye on the SCOTUS to ensure that legislation was interpreted in line with their intent and, when proper, reocmmending amendments.
I don't think that prodding Congress to make their intent clear where one believes that the Court has misconstrued it is the same as attempting to legislate oneself.
I can't imagine what a problem would be with a legislator expressing an opinion about the correctness of a legal opinion: Such an opinion presumably would be designed to influence legislation, not the judicial branch, so it is just part of the legislator's job. On the other hand, I find legislators' amicus briefs to be lame and quite objectionable, as they are efforts to influence another branch over which they have no proper influence.
The common theme is that when it comes to legislative/judicial affairs, it's okay for a government actor to their job, but not okay to try to use their fame or prominence to try to get another government actor to do theirs.
I agree that if Justice Ginsburg were really only interested in making sure that Congress knew its will had (in her view) been thwarted -- perhaps on a theory that Supreme Court opinions aren't covered in the news, so Congress isn't aware of the Supreme Court's work -- then her dissent would be much less objectionable.
But when trying to figure out what she is doing, I think Justice Ginsburg's own speech in which she explains what she is doing in her dissents is the most reliable guide. And I think it's hard to square her speech with your explanation.
Heavens, no - a black man could never be elected president or anything...
I want to enact my personal leftist liberal policy preferences into law but I can't because those old curmudgeons in the conservative wing of the Court are not willing to go along. Instead, they want to harp on about how they have to follow the statute and so forth. it is so inconvenient. I am sorry I have to ask you this but can you please change the law? I really tried hard, but it just didn't work out.
How true. America will never elected a black president, governor, or mayor. Go ahead, I challenge anyone to name me one.
But Ginsburg is doing something altogether different. She is saying "I tried to make law, but since I'm in the minority, you guys need to back me up." There is no recognition of the proper role of the different branches -- it is simply a call for legislation, by whichever branch possible.
This kind of activity undermines her credibility as someone merely "interpreting" a statute. It diminishes respect for the integrity her work in statutory-interpetation cases: where does "interpretation" end and advocacy begin for her?
It's impossible to quantify whether she helped her cause by blurring the line like this in Ledbetter. But whatever the effect on her cause, I think this behavior diminishes her as a judge. Indeed, the more consequential this activity is politically, the more damaging to the Court's image as a non-legislative, non-"political" (in the sense of not writing Good Things into law out of air) department of government.
The more I think about it, the more I suspect that you are deep down heading toward an argument against dissenting opinions -- which is a perfectly respectable institutional-conserving position, one that Chief Justice Marshall took early in his tenure when he abolish seriatim opinions. But respectfully, I don't think in the end the half-way position -- that a dissenting justice can carp about the majority but not make a constructive suggestion to Congress on the basis of that carping -- works.
Thoughts?
Do you think it appropriate for a majority opinion to call for legislative action in response to policy arguments from advocates or the dissent? Or if not to call for it, to at least point out that the legislature needs to change the law to meet the policy concerns?
That would be an odd conclusion, given that I stated above that I don't see any difference between such language appearing in a majority or dissenting opinion.
Here's an excercise: If you're interested, you tell me which of the following judicial opinions would strike you as inappropriate or problematic:
a) A dissenting opinion in an administrative law opinion in which Justice Thomas writes, "I can't believe the American people elected Barack Obama. I hope the American people will vote GOP in 2012. The Republican party is better for America."
b) A dissenting opinion in an affirmative action case in which Chief Justice Roberts urges Congress to make all affirmative action unlawful because he thinks affirmative action is a bad idea.
c) A concurring opinion in a tax case in which Justice Ginsburg writes, "My husband is a fantastic tax expert, and he is available for hire. I recommend anyone who wants to hire a tax expert should hire Marty Ginsburg."
d) A majority opinion by Justice Breyer in a criminal procedure case about interrogations in which he drops a footnote recommending that Congress pass a law mandating the videotaping of all confessions.
Which if any of these are troublesome? Why?
I think that d) is the least troublesome. If Justice Breyer is identifying a major hole in the law, and is dropping a footnote to show how it can be corrected, I'm not sure its a bad thing. How much worse is it than trying to create a system of procedural checks to cure the same deficiency? I am alluding to Miranda of course, but I wonder if it is worse to point out that the legislature should make a change because it is its job, or to make the change yourself?
(a) - unseemly, and it would harm Thomas's reputation, but I don't see it as a threat to judicial independence or the separation of powers generally.
(b) - doesn't really bug me; reminds me of Thurgood Marshall on the death penalty
(c) - even more unseemly than (a), because of the direct pecuniary interest involved, but otherwise the same as (a)
(d) - doesn't get my dander up at all
The plurality in this case says nothing about legislative intent but just language and doctrine. That's a little jarring, since it relies on Thornburg, which is all about legislative intent.
The concurrence gives legislative intent the middle finger, because it's very hard to argue with a straight face that Congress was not thinking about vote dilution when it amended § 1973 in 1982. (That's okay, by the way; that's how those justices think.)
Souter says, hey, legislative intent is important, and the rest of the court missed it, therefore screwing up the result. Ginsburg then sends up a rocket so Congress will know its will is not going to be used as an interpretive tool, so should be stated more plainly in the statutory text.
Is that close to right? If you think legislative intent matters, don't you tend to think that Ginsburg was correct?
If I had been on the court, I would have concurred but mentioned legislative intent and invited Congress to clarify whether it intended to mandate crossover districts or not.
[This issue isn't part of my problem so I should be okay talking about it.]
Legislators do not *recommend* legislation, they *enact* legislation.
It's an abuse of the judicial process for judges to try to use the opinion process as a bully pulpit to try to get other branches of government to take action that more closely aligns the law with their personal policy preferences.
Well, once you word it that way, of course you're right. But Justice Ginsburg evidently believes that her interpretation is closer to the letter and spirit of the statute. You don't think she's lying, do you?
And it's particularly ironic coming from Justice Ginsburg, who is a fierce critic of legislators using the lawmaking process to try to influence the outcome of judicial procedures.
There is a rather large difference between influencing the outcome of a judicial proceeding, which involves a dispute between particular parties, and influencing the enactment of general legislation which will apply to everyone.
So, looks like another "agree to disagree."
A dissenting opinion in an affirmative action case in which Chief Justice Roberts urges Congress to make all affirmative action unlawful because he thinks affirmative action is a bad idea.
How about "because he thinks affirmative action is inconsistent with the Fourteenth Amendment"? Once you put something plausible into his mouth, it doesn't sound quite as silly. Indeed, I might remember having read something of the sort in a judicial opinion once upon a time.
I disagree. She's saying that the plurality interpreted the statute incorrectly, that is, that the plurality misinterpreted Congress's intent. She is merely saying that Congress can amend the statute to restore the meaning that she believes Congress originally intended.
i.e applying her personal standards not a reasoned interpretation, as the basis for a decision.
You're getting kinda snippy, it seems, so I take it that I am trying your patience by responding further. But I find your comments puzzling. A single legislator can't enact legislation; that's the job of the entire legislature, usually together with the executive. And Justice Ginsburg is clearly not just making an argument that her interpretion is closer to letter and spirit of Congress.
Finally, in response to your last paragraph, I would submit that the difference between saying something is "bad policy" and "unconstitutional" is not just some slight variation in form. Judges have not just a right but a duty to decide cases on the latter; they have no right and no legitimacy to decide cases on the latter. In my view, the difference is the foundational principle upon which a proper judicial role is based.
I'm not sure I agree with the distinction you are making. It's true, of course, that the Constitution gives the President the power to veto legislation. But it's also true, if you buy the argument in Marbury v. Madison, that the Constitution gives the federal judiciary the power to invalidate acts of Congress.
You might respond that the Constitution limits the judiciary to "cases and controversies," whereas the President is not similarly limited in the exercise of veto power. This distinction, however, only applies to legislation that has already been passed by Congress. When the topic is potential legislation, I think that the President and the Supreme Court are, based on the text of the constitution, similarly situated: neither branch is expected to propose legislation.
So, why do we take issue with Justice Ginsburg's comments when we would not have an issue--at least not with respect to propriety--if President Obama make similar remarks? I don't think the answer can be found in the text or structure of the Constitution. I think the answer lies in how the presidency has evolved, with the executive taking an increasingly active role in proposing, shaping, and drafting legislation over the last one hundred years. We accept the President's efforts to propose legislation because of tradition, not because of the text of the Constitution.
Of course, if you see the Constitution as just whatever the judges want it be, then the difference doesn't mean very much, but then I guess I'm one of the old fashioned types that sees a big difference between the law and the public policy preferences of someone who happens to have an Article III appointment.
You've got some nerve quoting the actual text of the constitution in response to my broad claim. It's very inconsiderate of you.
In all seriousness, I stand corrected (though I still think that our constitutional tradition--beyond the actual text--significantly influences how we view the propriety of comments by members of the different branches of government).
e) A dissenting opinion in a statutory interpretation case in which Justice Souter writes, "Under the majority's interpretation of the No Toddler Behind the Wheel Act, toddlers would indeed be able to drive--a result I have demonstrated is impossible to align with the statutory language or the legislative history. The only way to avoid this result, though, is for Congress to enact a law more plainly stating its intent that toddlers be kept from driving."
If Justice Ginsburg started a blog, would it be appropriate for her to put her opinion there? Or as a justice, does she lose her rights to advocate for legislation that are common to ordinary citizens?
If a justice maintains a residence in a state like California, is it inappropriate for them to vote for ballot initiatives like ordinary citizens?
If Justice Ginsburg started a blog, surely more people would read it than most blogs, and she could use it as a "bully pulpit" of sorts.
I think that if you concede that Justice Ginsburg can have a blog, you are revealing your argument to be meaningless. A blog would be as effective as a non-binding dissenting opinion in which to express a view about what the law should be. Your assertion that this shouldn't go into a dissenting opinion is nothing more than an empty formality. On the other hand, if you are asserting she is no longer allowed to express her opinion, I think you are running into serious First Amendment issues. Supreme Court justices, like ordinary citizens, should be allowed to have and express their opinions on the business of the nation. Supreme Court Justices, like any ordinary citizen, are impacted by the laws passed by Congress and executive orders of the President.
Another thing. The President has the right and in fact does advocate for legislation outside of State of the Union addresses. The President of the United States surely would have the right to express his opinion about legislation, just as an ordinary citizen has that right, absent the power to convene Congress for State of the Union addresses.
Wouldn't it be a strange world indeed where a President had the right to veto legislation, but not the right to express an opinion about its wisdom??
One of the uses of the word "latter" should be "former".
This is closer to my interpretation of events, and I see no problem with it. I would also have no problem with B D and E. If a Justice had said that they thought the majority interpretation was wrong in Kelo and, btw, if legislatures agreed then laws could be passed to that effect it also wouldn't have bothered me. Would it have bothered you?
Is it irresponsible for Chief Justice Roberts to advocate for higher judicial salaries, or is that appropriate only because he is somehow authorized by statute to express his opinion?
I don't understand what a judicial opinion would look like in which a judge would says, "btw, if legislatures agree then laws could be passed." Given that, I don't know if such a thing would bother me. It would bother me if a judge said that he or she wanted the legislature to pass that law, though.
Here's an excercise: If you're interested, you tell me which of the following judicial opinions would strike you as inappropriate or problematic:
a) A dissenting opinion in an administrative law opinion in which Justice Thomas writes, "I can't believe the American people elected Barack Obama. I hope the American people will vote GOP in 2012. The Republican party is better for America."
Objectionable; it has nothing to do with ad law, and certainly nothing to do with the ad law issue at issue in the case.
b) A dissenting opinion in an affirmative action case in which Chief Justice Roberts urges Congress to make all affirmative action unlawful because he thinks affirmative action is a bad idea.
I'll come back to this one after your hypothetical (d).
c) A concurring opinion in a tax case in which Justice Ginsburg writes, "My husband is a fantastic tax expert, and he is available for hire. I recommend anyone who wants to hire a tax expert should hire Marty Ginsburg."
Outrageous, because practically corrupt. Grounds for impeachment.
d) A majority opinion by Justice Breyer in a criminal procedure case about interrogations in which he drops a footnote recommending that Congress pass a law mandating the videotaping of all confessions.
Likely fine, but not a slam dunk. Let me think this one out loud. Here's what I think is the argument for it. Justice Breyer could require -- not as a matter of hard constitutional law, but as a matter of what Henry Monaghan calls "constitutional common law" -- the videotaping of all confessions to better implement the prohibition on coerced confessions. So I see no harm in him taking the lesser step of telling Congress that it has to do something to address the problem or it might face constitutional problems down the road. Breyer in this hypo is writing this not because he wants to recommend a swell but irrelevant policy (say, a tax cut for the wealthy to get us out of the recession, or a ban on Bachelors' dumping their girlfriends), but because he (and the other members of the majority) want to engage in dialogue with Congress on a matter germane to a case being decided, rather than forcing an outcome down Congress' throat through constitutional law making.
Or to approach it a bit differently, say Justice Breyer subscribes, as a public law academic turned judge might well, to Larry Sager's under-enforcement thesis. He thinks the Constitution requires more robust protections against coercive interrogations. But he also thinks that implementing such a requirement would raise problems of management that might tax the court's competence. In such a case, why shouldn't Breyer urge Congress to fully enforce this Bill of Rights guarantee, by telling it what the Court's limitations are and why it might be in a better institutional position to enforce the Constitution as fully as it deserves? That seems to me to be a justified, and even laudable, use of the footnote power.
(If Justice Breyer is dropping that footnote because he owns stock in video equipment companies, by contrast, it wouldn't be fine, nor would it be if he just thought video taping was really, really cool. It all depends, in other words, on context and rationale, in a sometimes subtle way.)
Now to your hypo b. It all depends on just what Roberts is saying in his dissent by, as you put it, calling affirmative action a "bad idea." If he's saying that affirmative action, while perfectly constitutional, is economically inefficient, then he probably shouldn't do so in his dissent. He has no special expertise on economic efficiency. If, on the other hand, the Chief Justice wishes to remind Congress that it has an independent role in interpreting the Constitution, and that it should seriously consider the constitutional arguments against affirmative action in reviewing existing programs, I think that's great. It's great, indeed, because it reinforces important structural, dialogic features of the Constitution and so is properly part of his job.
Which brings us back to Justice Ginsburg's dissent today. She's not steering business to her husband, and she's not opining on her preferences for President. Nor is she telling Congress that it needs to pass a new Civil Rights Act because race relations in the U.S. are in bad shape. Rather, she is telling Congress that it has a role to play in correcting the bad situation the majority created by its very bad and unfaithful act of statutory interpretation. She is, in other words, simply reminding Congress that it has the power to "overrule" the majority -- reminding it of its potential as a dialogue partner. In my view, that's not only ok; that's part of her job.
I really enjoyed the class, Prof. Kerr! Have a nice summer!!!!!
I suppose I'm wondering whether yours is an objection to any sort of judicial statement urging congressional action, or just one that has some sort of public-policy judgment at its core.
My concern is a judge trying to get his or her policy preferences enacted into law.
While she's at it, she should advise Congress to repeal the stimulus package. Bad policy.
I think the point that is being made is that these special VRA districts are a form of "ghettoization" where the winners advocate more liberal positions in accordance with the district voters. These positions don't work as well statewide.
Most large cities have either majority of 40%+ minority populations so hardly refute the point.
One president and one current elected governor is not that much of a refutation either.
I'm not sure I buy into the "ghettoization" theory but it is a legitimate theory. Why do blacks often do so poorly statewide? Is it just racism or something else?
When the president vetoes a bill, the Constitution (art. 1, sec. 7) positively requires that he "shall return it with his Objections to that House in which it originated." Now you might regard this as an "empty formality," but the Framers did not. Indeed, they were very much concerned about presidents who used their office as a "bully pulpit" because of their fears of demagoguery, which is why the presidents of the Founding era did not direct their veto messages to the public at large. For a judge to recommend legislation in a judicial opinion seems to be an even greater violation of the formalities of the Constitution.
Judges are human, their desirable to improve the law understandable, and some advisory outlet for that desire is not inappropriate. Moreover, as respected, articulate members of the community who have an opportunity to see laws implemented first-hand including their flaws, the views of judges deserve some weight in informing a legislature's considered judgement. Judges have experience in implementing laws, they are not isolated from that implementation nor from their society, and their voice and views deserve a legislature's consideration.
However, I think these sorts of recommendations are at their strongest and their legitimacy clearest when judges informally suggest that legislatures change the law to be something different from what they have formally ruled it to be. In these circumstances, it is completely clear which part of the opinion is a legal ruling and which a recommendation, which represents the law as it is and which the judge's opinion of what it should be. The judiciary's independence and the legal foundation of its rulings is maintained.
When judges write that the law both is and should be something, there is risk of confounding the two, and these types of recommendations are at their weakest.
Interested persons might want to look at Ginsburg's concurrence in Aetna Health, Inc. v. Davila, 542 U.S. 200, 222 (2005) (agreeing that ERISA preempts state law but "join[ing] 'the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime'").
Would you analyze concurrences the same as dissents?
I bet a blog by Ginsburg would get more attention and have more influence than a dissenting opinion anyway. A lot of people would be willing to make the relatively smaller amount of time it takes to read a blog entry than the significantly larger investment it takes to read through a judicial opinion.
You are probably right about a Ginsburg blog getting more attention, but at least that wouldn't be her official proclamation in her capacity as a SC justice writing court opinion (or dissent).
and if she enables comments, we can try her patience also :)
2) Your quote is nonresponsive anyway. I didn't say that the Fifteenth Amendment outlawed all voting qualifications. I said that the Fifteenth Amendment "invested legislative authority in congress over [some] voter qualifications."
Sorry to be snippy; it's just that "bad idea" in this context is usually a partisan reading of what the opposite partisan side calls "unconstitutional."
Maybe your hypo should have Roberts urging that the speed limit on the NJ Turnpike be raised to 90?
"Clearly"??? Come on professor, you know that word's a red flag for a poorly thought out idea. Why is it so "clear"?
You might treat it as a red flag, but consider the context. Justice Souter's dissent made the argument that the interpretation is closer to letter and spirit of Congress. Here, Justice Ginsburg added a short paragraph agreeing and then adding a separate point that she said was "implicit in his exposition" but not expressly made. I don't know how to read the paragraph as not making a separate point: It seems pretty clear to me that Ginsburg thought that her dissent wasn't just a repetition of Souter's, as otherwise it would have just said so. When you add that to Justice Ginsburg's own speech about the role of dissents, and the fact that the phrasing she uses in her new dissent is nearly identical to the phrasing she used in the dissent that she talks about in her speech as an example of a dissent written to "propel legislative change", it seems to me quite clear that she is not simply arguing that her interpretation is closer to the letter and spirit of Congress. Rather, it seems clear that she wrote the dissent to "propel legislative change." We can argue about whether this is good or bad, but I don't think it's particularly realistic in context to claim that her dissent isn't an example of this.
Seems like that's the first burden you have in showing how inappropriate this is, and your post doesn't offer any support.
Where do you get that. The only mention of those dissents is
RBG thought that the court thwarted Congressional intent, and wanted to prod Congress into making its intent plain.
Now, perhaps she was wrong about Congress' intent in the first place, wrong in her dissent and now triply-wrong in asking Congress to reaffirm its intent, but those are all really the same mistake writ large, no?
You skipped over the part where Ginsburg said that she said she wrote the dissent "to attract immediate public attention and to propel legislative change," and where (as I read her speech) she seemed to express unhappiness that President Bush theatened to veto the legislation. If that is simply prodding the legislature to speak clearly, regardless of what it's intent actually was, I don't know why the goal would be to "propel legislative change."
The court seems to care since they love quoting him :-)
Also, wasn't just his personal opinion, but the entire congress. Many radicals wanted a much stronger amendment, one that prevented states from specifically enacting education, religious or property qualifications. But there was no chance such an amendment could ever be adopted. I think Boutwell admitted only 3 states could be counted on to approve of outlawing an educational test.
David M. Nieporent wrote: "Your quote is nonresponsive anyway. I didn't say that the Fifteenth Amendment outlawed all voting qualifications. I said that the Fifteenth Amendment 'invested legislative authority in congress over [some] voter qualifications.'"
You made no such statement in this thread.
Well, she believes that Congress' intent is X and legislative change is required to encode Congress' intent for the statute to mean X because the Court flubbed it and interpreted it to mean Y.
The only possible fix for the Court reading Y when the intent is X is for the legislature to amend the law to make X clear.
The way I read it, everything follows from her original assertion that Congress could not possibly have intended the result that the court reaches. The rest is decoration.
Why would Justice Ginsburg think that the Congress of today would have the same "intent" as the Congress of 1965? How many members of Congress in office today were in office then, voted for the act, remember the vote, and actually had a view as to this particular issue? It seems to me that the number is zero.
(As an aside, it's always interesting how a person's willingness to be a legal realist about a judge's behavior so often hinges on whether one feels affinity for the jurist in question.)
Why is that relevant? RBG contends (and I will concede that this claim is contentious) that both the 1965 Congress and the current Congress could not possibly intend for the statutory remedy to be so stingy.
Perhaps I use the phrase "intend" too loosely, since the '65 Congress encoded their intent into statute, as best they could, whereas the intent of the current Congress is largely un-legislated (devoid of form, if you are feeling biblical).
The point is that, in her view, the Court's position is discordant with both Congresses.
Are you suggesting that Justice Ginsburg is not actually advocating a change, but rather has made an assessment of the political views of the current Congress and has decided that she can help this Congress better achieve self-actualization by helping it do what she knows it wants? All in that short paragraph? That is a truly remarkable theory, and I hope you will explain in detail where you are getting that.
Because if Congress intended to do X and, due to the whatever reason (imprecise language, unforeseen circumstances or perhaps the application of the law to an unusual or unexpected pattern of facts...), the statute is interpreted to mean Y, that is a failure of the democratic system (in fact, it's a failure of all systems of written law since no enumeration in law is sufficient to fully capture the meaning of the writer, who himself is finite is capacity anyway.
No, I think she is advocating a change. A change that will restore the statute to what Congress wanted it to be in '65 and, concurrently, what the current Congress wants it to be. In other words, she is advocating a change that will fix this problem where the original statute did not make it clear that each act of being paid unequally is a novel injury, even though it intended for that to be the case. IOW, she intends a change in wording that will prevent a change in meaning.
If the law in your house is "No jumping on the bed" and you come home to find your kids hopping on the bed and insisting, of course, that hopping is not jumping. Would you consider the subsequent clarification to be a "change" in the law or are you just making clear what you thought you said in the first instance?
Your example is so loaded it makes me think we are reading Justice Ginsburg's very short paragraph as if they were two completely different pieces of text. Given that, perhaps it makes sense to move on.
Second, I repeat: why should a judge care? The 2009 Congress can only do what the 2009 Congress intends, not what the 1965 Congress intended. If the 2009 Congress doesn't pass a new law reversing the Court's decision, isn't that just as "democratic" as it passing such a law?
Of course. It just happens by pure coincidence that those two things align.
There is nothing wrong with the current Congress repealing the entire US Code if they want.
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And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.