« Ratification of the Canada-China BIT | Main | Intellectual Property Infringement as Vandalism (Part 3) »

Friday, September 19, 2014

Who Is Justice Ginsburg Talking To?

Justice Ginsburg recently offered some surprising public remarks on the pending same-sex marriage petitions currently before the Supreme Court. (H/t Dale Carpenter at VC.) In particular, Justice Ginsburg suggested that the Court should not (would not?) grant the currently pending petitions at the end of the month because, in her view, there is no post-Windsor circuit split. As Lyle Denniston has noted, discussing pending cases in this way is highly unusual. Why would Justice Ginsburg take this unusual step?

By way of background, here is Dale Carpenter’s transcription of Justice Ginsburg’s remarks:

So far the federal courts of appeals have answered the question the same way–holding unconstitutional the bans on same-sex marriage. There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.

One of the many reasons for Justice Ginsburg’s fame is that she has criticized the Court for too quickly constitutionalizing abortion rights in Roe v. Wade, and her new remarks seem to be in that spirit. Still, Ginsburg's recent remarks are doubly surprising.

First, they are surprising because of their content. Federal appellate courts have now invalidated state marriage laws in large swaths of the United States, and those decisions are in conflict with pre-Windsor rulings affirming no-same-sex-marriage laws. The result is a tremendous legal disparity: same-sex couples have a constitutional right to marry in large parts of the United States, but not in most of it. This is a real problem for same-sex couples, including because states have taken different positions on whether to recognize one another’s same-sex marriages. At the same time, the federal courts have intruded into a traditional domain of state sovereignty. What’s more, the Court just a few years ago granted cert in the same-sex marriage case Hollingsworth v. Perry. Given all this, many observers thought the Court would certainly grant one or more of the pending cases. Indeed, there is a fair argument that these are among the most cert-worthy petitions ever filed.

Second, Justice Ginsburg’s remarks are surprising because of their timing and subject matter. As Lyle Denniston put it over at SCOTUSBlog: “It was highly unusual for Justice Ginsburg to raise the curtain on internal considerations that may be at work as the Court approaches its first look at the new round of same-sex marriage cases.” Normally, judges do not discuss their views regarding pending cases. And Justice Ginsburg spoke not only about the pending cert petitions in her own Court, but also about the pending Sixth Circuit case that she might soon review. Moreover, in asserting that there is currently no relevant circuit split, Justice Ginsburg appeared to advance a position that is controversial and in fact disputed by the petitioners and other parties currently before the Court.

Why would Justice Ginsburg have made these remarks? One way to pursue that issue is to ask who Justice Ginsburg was talking to. Carpenter mentions a few possibilities: “Justice Ginsburg had multiple audiences for these comments: the students and faculty assembled before her, of course, but also the Sixth Circuit and her colleagues.”

Let’s consider these possibilities separately, and add one or two more.

  1. The assembled students and faculty. Maybe Justice Ginsburg was just reacting candidly to a question and spoke her mind to a closed audience. This possibility would be most tenable if Justice Ginsburg believed that her remarks would be off the record. Clearly, however, she was not off the record, for not only did Carpenter blog about his recollection of them, but an official University of Minnesota video of the remarks is now online. Assuming Ginsburg understood that her remarks would soon become public fodder, she would presumably have had a larger audience in mind. Still, it’s possible that Justice Ginsburg just didn’t think past the largely academic audience in front of her.
  2. The Sixth Circuit. Could Justice Ginsburg have been putting the Sixth Circuit on notice regarding the consequences of its ruling? A few days ago, the Sixth Circuit might reasonably have assumed that its decision would just be one more opinion on gay marriage. Indeed, the Sixth Circuit might have expected its decision to issue (if at all) only after the Supreme Court had granted cert. But, in light of Justice Ginsburg’s remarks, the pending Sixth Circuit case takes on much greater significance. In essence, Justice Ginsburg suggested that the Sixth Circuit has short-term control over whether the Supreme Court will consider gay marriage this Term. Would communicating that information influence the Sixth Circuit, perhaps by discouraging it from being reviewed by the Court on such a momentous, historic issue? Could Justice Ginsburg have wanted to exert such influence? It is doubtful whether such a goal would be proper.
  3. Other Supreme Court Justices. Is it possible that Justice Ginsburg wanted to supply her colleagues with a reason to deny cert? From one standpoint, that explanation is obviously insufficient: surely Justice Ginsburg could simply have circulated a memo setting forth her views. As Denniston noted, the Court has already taken administrative action on the petitions, including by distributing the most recent petition much faster than normal. Those kinds of events could easily prompt formal or informal discussion, even before the Long Conference. But perhaps Justice Ginsburg sought to persuade her colleagues indirectly by changing public expectations regarding the pending cases. That leads to the next category.
  4. The public. Many people have assumed that the Court would take one of the pending gay marriage cases at or soon after the Long Conference at the end of this month. On their face, Justice Ginsburg’s comments undermine that widespread expectation. But why challenge that public assumption now? Why not just wait until, say, the denial of cert? Perhaps simply denying all the petitions without comment would be too much like a splash of cold water, particularly for the gay rights community. And if Justice Ginsburg wrote an opinion concurring in the denial of certiorari to explain the Court’s decision, that might provoke a counter-opinion by another Justice—thereby adding confusion and reducing the odds of denying the petitions at all. In addition, Justice Ginsburg might want to float the possibility of denying or holding the petitions to get a sense of how such a move would be received. If it were received well--or at least not badly--perhaps that result would increase the chances of a denial or hold.

None of these explanations seems entirely satisfactory, and perhaps several operated in tandem to various degrees. Are there other possibilities?

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on September 19, 2014 at 12:23 AM | Permalink


I have a simpler explanation, though one most attorneys would not dare utter in public: To Orin's point, she maybe just likes talking, but combine that with the fact that she is old and maybe--just maybe--is not thinking at all (or not enough) about how these remarks would be viewed or interpreted.

Posted by: WT | Sep 22, 2014 5:35:37 PM

Justice Ginsburg exists in a bubble unconnected to most peoples' sense of reality -- as evidenced by her charming belief that waiting another 2-4 years to retire will not affect who replaces her. She apparently feels I constrained by the legal, ethical, and prudential norms specifying that judges and Justices ought to be especially circumspect about commenting on particular cases that may come before them. I wonder whether those who castigate as Alia for his occasional (and also improper) public comments on particular controversies will also direct their criticism to Ginsburg.

Posted by: Bubble Theory | Sep 19, 2014 11:59:04 AM

I am still stuck on your first point. Why does Justice Ginsburg think these petitions are not cert-worthy in the absence of a circuit split? All of these petitions are more cert-worthy than Hollingsworth v. Perry, which adopted a California-specific rationale. Even in the absence of a circuit split, would the Supreme Court really just sit back as the appeals courts establish a constitutional requirement of same-sex marriage across the country?

There's another problem. In principle, you could tell a story where the Supreme Court really doesn't want to get involved in these cases: maybe there's a 5-4 majority for affirming the lower court rulings, but the majority would rather this be done gradually by lower courts than all at once by the Supreme Court, and the minority is acting defensively to avoid the establishment of a national precedent they would dislike. But this story is at odds with how the Supreme Court's willingness to grant stays in lower-court marriage rulings where appeals courts have declined to do so. It has already rejected the "let the lower courts work it out" approach, conferring on itself the power to determine if and when these rulings go into effect, even if just by denying cert and thereby terminating the stays.

I think either we are overreading Justice Ginsburg's statements (her phrasing is a bit more cagey than some of the reports suggest) or her views are decidedly out of sync with those of her colleagues.

Posted by: JHW | Sep 19, 2014 9:45:56 AM

I won't speculate on Justice Ginsburg's motives or intended audience, or on the likelihood that the Court will deny cert. And I surely don't mean to suggest that the Court *ought* to deny the petitions. (If I were a Justice, I'd probably vote to grant two or more of them.) I do, however, question whether such a denial of the petitions, without comment, "would be too much like a splash of cold water, particularly for the gay rights community." Without more, such a denial would have the effect of lifting all the stays, and thereby establishing SSM in seven or more states in an instant. And, in the absence of any circuit split, we'd then likely get to nationwide SSM fairly rapidly, even without SCOTUS treatment, as each of the other circuits issues decisions. On the other hand, if a court of appeals were to uphold any state's law, that would then be an occasion for Supreme Court resolution of the question.

Posted by: Marty Lederman | Sep 19, 2014 4:47:01 AM

My hypothesis is that RBG just really enjoys giving hints about what the Supreme Court will do.

Posted by: Orin Kerr | Sep 19, 2014 1:04:11 AM

The comments to this entry are closed.