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Monday, September 21, 2020

Remembering Justices

Jack Balkin describes what Sandy Levinson and he call the "biography rule," dividing Justices between those whose primary achievement and notoriety derives from their service on the Court and those who would have had biographies written about them had they never served on the Court. Balkin places Ruth Bader Ginsburg in the second category, based on her advocacy for women's rights.

I wonder if we can sub-divide that second category: Whether their greater legacy is from their service on the Court or from their great pre-Court achievements. I think Taft is in the latter box, at least for non-lawyers; more lay people know he was President of the United States than know he was Chief Justice, even if he was better in the latter than the former role. I think Black and Warren go in the former box; Warren had a greater effect as Chief Justice than as Governor of California or unsuccessful VP candidate, Black a greater effect as a Justice than as a Senator.

What of Ginsburg? Balkin highlighted her opinion for the Court in U.S. v. Virginia and her dissent in Shelby County. She earned a reputation as a "great dissenter" (following in the footsteps of Holmes and Brennan), especially after Stevens left the Court in 2010 and she became the senior-most Justice in dissent. I would add her jurisdictionality opinions (she wrote numerous opinions narrowing the class of rules regarded as jurisdictional) and her opinions on personal jurisdiction (she wrote the opinions adopting and reifying the "essentially at home" standard for general jurisdiction).

The obvious comparator for Ginsburg is Thurgood Marshall. Both established significant equal protection law as litigators and their careers on the Court were similar (RBG served three years longer). But the prevailing view (rightly or wrongly) is that Marshall affected the law more as a litigator than as a member of the Court (putting aside the significance of being the first African American Justice) and authored relatively few canonical opinions that are remembered as "Marshall opinions." I expect that Ginsburg will be remembered more for her work as a Justice, if for no other reason than because a segment of pop culture adopted her in that role in a different cultural environment than Marshall worked. But time will tell.

Posted by Howard Wasserman on September 21, 2020 at 09:31 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

"with no major gun-control laws being struck down anywhere?"

Duncan v. Becerra says hi.

Posted by: thegreatdisappointment | Sep 21, 2020 3:55:09 PM

A vastly more important litigator than Justice, though of course she was a better Justice than Marshall was. The dissent in Shelby County is a good dissent in an important case, but the question that case presented is so narrow and almost one-off that it's difficult to see that opinion having much influence. Of course she was a very fine civil proceduralist, but not a terribly consequential one.

Posted by: Asher Steinberg | Sep 21, 2020 3:19:21 PM

I'll remember her largely for her unapologetic pragmatism (which is neither flattering nor damning)and resulting empirical incisiveness (flattering).

Posted by: Edward Cantu | Sep 21, 2020 2:19:45 PM

Hasn't Justice Marshall's dissent in San Antonio Independent School District v. Rodriguez become the law in 46 states? So for all intents-and-purposes it won the day?

And isn't Justice Marshall's view on affirmative action in his concurrence in Bakke what's actually practiced on campuses today?

Just like how Justice Breyer's dissent in D.C. v. Heller is basically treated as the law in all circuits with no major gun-control laws being struck down anywhere?

Posted by: Day Winners | Sep 21, 2020 1:52:13 PM

Hasn't Justice Marshall's dissent in San Antonio Independent School District v. Rodriguez become the law in 46 states? So for all intents-and-purposes it won the day?

And isn't Justice Marshall's view on affirmative action in his concurrence in Bakke what's actually practiced on campuses today?

Just like how Justice Breyer's dissent in D.C. v. Heller is basically treated as the law in all circuits with no major gun-control laws being struck down anywhere?

Posted by: Day Winners | Sep 21, 2020 1:52:12 PM

Ledbetter is a good example of another significant Ginsburg opinion.

I am not sure why Scalia got dragged into this, since he is not the comparator. But one could read the congressional decision to let the independent counsel statute lapse as at least partly adoption of Scalia's views in Morrison. In fact, some conservatives now treat that dissent as the controlling law.

Posted by: Howard Wasserman | Sep 21, 2020 1:20:47 PM

Wasn't Justice Ginsburg's dissent in Ledbetter v. Goodyear Tire & Rubber Co. the catalyst for a new law (Lilly Ledbetter Fair Pay Act of 2009)?

I don't remember any of Scalia's dissents becoming laws.

Posted by: Lilly | Sep 21, 2020 12:31:37 PM

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