Tuesday, July 14, 2015

Ruth Bader Ginsburg at Harvard

A few weeks ago I attended Radcliffe Day at Harvard. They gave an award to Justice Ruth Bader Ginsburg and she was there to accept it and it was open to the public. In the morning was a panel discussion about the Robert's court and during a luncheon was a interview with Justice Ginsburg (with an introduction by Justice Souter). I waited to post this until the video was up. Here's the Panel Video and here's the RBG Video.

Below are my notes from the day. There were some prepared case studies handed out and I've included the text and links to web pages describing some of the mentioned cases. It was a fun day.

I was far in the back for the interview,

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but afterwards as I was waiting for a tour to start, she walked right by me.

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Morning Panel

“A Decade of Decisions and Dissents: The Roberts Court, from 2005 to Today,”

Moderated by Margaret H. Marshall EdM ’69, the former chief justice of the Supreme Judicial Court of Massachusetts and a senior research fellow and lecturer on law at Harvard Law School.

The Roberts Court and Congress

by John Manning - Bruce Bromley Professor of Law, Harvard Law School

Case Study

National Federation of Independent Business v. Sebelius (2012)

In National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Roberts Court upheld the so-called “individual mandate” in the Affordable Care Act (ACA). The individual mandate required Americans either to maintain a minimum level of health insurance or to pay a fee or penalty to the IRS. The individual mandate worked in tandem with another key element of the ACA. Because the ACA required insurers to cover individuals with preexisting conditions, healthy individuals could (if left to their own devices) defer buying insurance until they got ill. The individual mandate addressed this potential free-rider problem in the interstate insurance market. The question before the Court was whether Congress had the constitutional authority to compel individuals to purchase insurance.

The Court split into two 5–4 majorities, with Chief Justice Roberts supplying the deciding vote for each. In an opinion joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, Chief Justice Roberts sustained the individual mandate as a proper exercise of Congress’s taxing power. The other 5–4 majority, however, better captures the Court’s approach to issues around federalism and separation of powers. In a solo opinion by Chief Justice Roberts and a joint dissent by Justices Scalia, Kennedy, Thomas, and Alito, a second majority found that Congress could not use the Commerce Clause—the broadest and most basic of its powers—to compel individuals to enter a stream of commerce.

Although the Constitution gives Congress primary authority to implement all constitutional powers, the second 5–4 majority gave no deference to Congress’s judgment about how to address a free-rider problem in a conceitedly interstate market. No constitutional text or tradition precluded Congress’s approach. Rather, a “lack of historical precedent” for such an approach was the “most telling” indication of a problem. Upholding the individual mandate under the Commerce Clause, moreover, would give Congress too much power in a federal system, perhaps even enabling it to compel bad eaters “to buy vegetables”—a result the Framers could not have countenanced. In contrast with the Court’s deferential post–New Deal approach to regulatory issues, the Roberts Court has displaced acts of Congress based on its own independent judgment about indeterminate federalism and separation of powers values.


  • Upheld Obamacare individual mandate
    1. valid as a tax - Roberts and the liberal justices
    2. not valid under commerce clause - was Roberts alone but conservative justices agreed -They said ACA created commerce didn't regulate it.
  • But there is big interstate commerce on healthcare
  • Allowing congress to regulate inaction would expand powers
  • Not what framers foresaw, but the framers didn't foresee lots in this world and gave power to congress to that end
  • Necessary and proper clause

The Roberts Court and Race

by Linda Greenhouse - Knight Distinguished Journalist-in-Residence and Joseph Goldstein Lecturer in Law, Yale Law School, and former Supreme Court correspondent, the New York Times

Case Study

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

“Parents Involved” was an early Roberts Court decision that invoked the Fourteenth Amendment’s guarantee of equal protection to invalidate two public-school student-assignment plans that were aimed at preserving not racial segregation but racial integration.

The school systems were those of Louisville, Kentucky, and Seattle, Washington—cities with very different histories. Both had achieved a measure of integration as the result of federal court orders. They sought to preserve integration in the face of housing patterns that threatened their hard-won gains and adopted plans to take the preservation of racial balance into account when granting a family’s school assignment or transfer requests. Federal appeals courts upheld both plans, decisions the Supreme Court overturned by a vote of 5–4.

According to Chief Justice Roberts’s opinion for the Court, the constitutional flaw in both plans was that they involved the same kind of “racial classification” that the Court had invalidated in Brown v. Board of Education. The school districts’ “worthy goal does not mean they are free to discriminate on the basis of race to achieve it,” he wrote, in an opinion joined by Justices Scalia, Thomas, and Alito.

Justice Kennedy, providing the crucial fifth vote to declare the plans unconstitutional, refused to sign the Roberts opinion, declaring it simplistic and too dismissive of the history of the cities’ efforts to overcome the legacy of segregation. Justice Kennedy said that while the districts’ “compelling interest” was clear, they should have tried more narrowly tailored means of combating racial isolation.

The dissenting opinions were vigorous. Justice Stevens accused the chief justice of rewriting Brown v. Board of Education, not honoring it. In trying to preserve integration, Louisville and Seattle “do not impose burdens on one race alone and do not stigmatize or exclude,” he said. Justice Breyer, whose dissenting opinion was joined by Justices Stevens, Souter, and Ginsburg, said the Court was ignoring facts, history, and what he called “the moral vision that the Fourteenth Amendment itself embodies.”


  • An activist decision
    • there was no lower court conflict
    • similar case came up just before Roberts (w/ Sandra Day O'Connor) and wasn't granted cert
    • "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
    • Schools wanted to preserve achieved racial integration
    • Roberts said there was no "compelling interest" in counting race
    • Kennedy said was compelling interest but plan wasn't narrowly tailored
    • Roberts could have just used Kennedy's argument but Roberts wanted to say what he wanted to say, ergo activism
    • Not sure we'd see smae behavior fom Roberts today

  • Sotomayor dissent in Schuette v. Coalition to Defend Affirmative Action 2013 played on Robert's language:

    • The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

  • The 14th Amendment didn't say we had to be color blind and was written by racists, so originalists don't have an argument

Race and the Supreme Court: What the Schuette decision reveals about how we talk about race.

The Roberts Court and Access To Justice

by Lauren Sudeall Lucas - Assistant Professor of Law, Georgia State University

Case Study

Ashcroft v. Iqbal (2009)

In the wake of 9/11, the federal government detained thousands of Muslim men across the United States. One of those men was Javaid Iqbal, a Pakistani Muslim man who was arrested and held on immigration charges. Iqbal was detained under maximum-security conditions, where he claimed he was subject to abuse as a result of his religion and national origin. In its 2009 decision, Ashcroft v. Iqbal, the Roberts Court did not rule on the constitutionality of Iqbal’s treatment while detained. Instead, the decision focused on whether the accusations detailed in Iqbal’s complaint met the requirements for bringing a lawsuit in federal court.

The Federal Rules of Civil Procedure require a complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” In 1957 the Court had held that in applying this fairly lenient standard, a court should consider the plaintiff’s allegations as true “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In 2007 the Roberts Court toughened the pleading requirements in Bell Atlantic Corp. v. Twombly, requiring plaintiffs in antitrust cases to plead enough facts “to state a claim to relief that is plausible on its face.”

Writing for the majority in Iqbal, Justice Kennedy—joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito—made clear that Twombly’s “plausibility” standard would apply in all civil cases.

In doing so, the Court provided lower courts with greater judicial discretion, requiring them to draw on “judicial experience and common sense” in making such a subjective determination. Justices Souter and Breyer authored dissents challenging the majority’s interpretation of Twombly. Justices Stevens and Ginsburg joined Justice Souter’s dissent, confirming the view expressed in their Twombly dissent that the Federal Rules were designed “not to keep litigants out of court but rather to keep them in.”

Under the Iqbal standard, the Court held that Iqbal’s complaint failed to plead sufficient facts to support his claims. Although media coverage of the case focused on its relation to the September 11 attacks, Iqbal has much greater significance for its potential to obstruct plaintiffs bringing a wide range of federal claims—including discrimination claims and civil rights violations—from ever having their day in court.


  • Standing claim of Muslim detainee
  • Applied Twombly 2007 standard to all civil cases
  • Iqbal became widely cited
  • Souter wrote Twombly and dissent in Iqbal
  • Cited lots of stats about how many fewer cases are making it to court
  • Not a constitutional question, Congress could overturn with statute

Supreme Court Ruling Altered Civil Suits, to Detriment of Individuals

Greenhouse: Roberts court mixed on standing, ignores it when it wants to rule on merits

Michael Klarman - Kirkland & Ellis Professor, Harvard Law School

The Roberts court is the most pro-Chamber of Commerce court in history

Framers had a very narrow view of 1st Amendment. Even the Sedition Act wasn't unconstitutional. So Originalism fails Citizens United

Term Limits

  • class of his came up with a plan: 18 year staggered terms
  • solves a lot of problems:
    • presidents picking younger justices
    • justices picking when to leave,
    • clumping of openings

  • places that adapt our system, don't adapt lifetime terms
  • of states, only RI has lifetime terms for judges

On Being RBG Clerk

Entered Harvard in 1956, one of 9 women from a class of 500, couldn't live in dorms or eat in dining hall. Dean had women over for dinner once and asked why they came to HLS taking the spot of a man. RBG hadn't been prepared for the question but since her husband at the time was a second year HLS student she said she thought it was important that a woman understand her husband's work.

In the 70s she was very busy with work and had a 10 year old son. She got several calls from his school about his behavior. Eventually she told them the child has two parents and suggested they alternate calls between them. The calls stopped because the school wouldn't dream of bothering an important tax attorney at his work.

Luncheon Notes

David Souter

Her first day on the court, Souter sat between her and Scalia. Both Souter and Scalia were aggressive questioners. She beat both of them to the first question and then kept that up. Scalia leaned over to Souter and whispered "You and I may have asked our last question on the court"

"I can't reserve caution in my delight of Ruth"

RBG and Souter voted alike more than any other two justices. More than Scalia and Thomas

Ruth Bader Ginsberg and Kathleen Sullivan

Reed v. Reed (1971)

Sally Reed of Idaho. Divorced, one son, lived with his father, though she fought for custody arguing he would be a bad influence. Turns out she was right, the son, using one of the father's guns committed suicide. She wanted to administer the estate. Idaho law said all things being equal, choose a man over a woman. A perfect test case. "The Supreme Court ruled for the first time in Reed v. Reed that the Equal Protection Clause of the Fourteenth Amendment prohibited differential treatment based on sex."

Weinberger v. Wiesenfeld (1975)

Stephen Wiesenfeld was a widower, his wife was earner but he was denied social security benefits. Unanimous decision but based on different reasoning:

  1. Discriminated against the mother who paid taxes but didn't get the same benefit to her family
  2. Discriminated against the father who wanted to raise child
  3. Renquist said discriminated against child for being denied right to be raised by either parent. First time he ruled against a lwa based on equal protection clause.

Court should not get ahead of public opinion. Roe v. Wade could have ruled just against the Texas law (which allowed abortion only to save the life of the mother, not the health), but it overturned all abortion laws, even liberal ones. So the pro-choice people went home having won and the pro-life people now had a single target to fight.

Scalia/Ginsburg Opera. Some people have complained about the order of the names, since alphabetically she should be first, but the court is based on seniority so it's proper for Scalia to be first. In the plot, Scalia is in a dungeon for excessive dissenting and she comes to his rescue breaking through a glass ceiling.

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