Justice Ginsburg Reflects on Bush v. Gore, Citizens United and Shelby County

TNR interview of the Justice by Jeff Rosen:

JR: And you’ve discouraged separate concurrences.

RBG: Yes.

JR: Why is that?

RBG: The experience I don’t want to see repeated occurred in Bush v. Gore. The Court divided five to four. There were four separate dissents, and that confused the press. In fact, some of the reporters announced that the decision was seven-two. There was no time to get together. That case was accepted by the Court on Saturday, briefed on Sunday, oral argument on Monday, decisions on Tuesday. If we had time, the four of us would have gotten together, and there might have been one dissent instead of filling far too many pages in the U.S. Reports6 with our separate dissents.

JR: Generally, you’ve been more reluctant to compromise than some of your colleagues. Is that a conscious decision?

RBG: That was so in Bush v. Gore. It was also true more recently in theHobby Lobby case, where Justices Breyer and Kagan said we’d rather not take a position on a for-profit corporation’s free-exercise rights.

JR: What’s the worst ruling the current Court has produced?

RBG: If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s number one on my list. Number two would be the part of the health care decision that concerns the commerce clause. Since 1937, the Court has allowed Congress a very free hand in enacting social and economic legislation.8 I thought that the attempt of the Court to intrude on Congress’s domain in that area had stopped by the end of the 1930s. Of course health care involves commerce. Perhaps number three would be Shelby County, involving essentially the destruction of the Voting Rights Act. That act had a voluminous legislative history. The bill extending the Voting Rights Act was passed overwhelmingly by both houses, Republicans and Democrats, everyone was on board. The Court’s interference with that decision of the political branches seemed to me out of order. The Court should have respected the legislative judgment. Legislators know much more about elections than the Court does. And the same was true of Citizens United. I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.


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