In my recent Slate piece, I talked about Justice Ginsburg “speaking truth to power” in relation to the wrongfulness of the Citizens United case. How could this be possible? She’s on the Supreme Court, with a lot of power, no?
The key point here is that on issues of campaign finance (and on many other issues, such as affirmative action), Justice Ginsburg has no power to change the law. She’s outvoted as part of a 4-justice minority.
What is a Justice to do in such circumstances? I address the issue in a forthcoming article Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available). I specifically contrast Justice Alito’s invitation to litigants to bring more suits to the Supreme Court with Justice Ginsburg’s appeals to Congress to overrule the Court (in statutory cases). He has the power; she speaks truth to power. Here’s the relevant contrast, from the draft paper (footnotes omitted):
Invitations exist when one or more Justices invite (1) litigants to argue for the overruling or extension of precedent in future cases or (2) Congress to overrule Supreme Court statutory precedent. Here I briefly describe the Roberts Court cases in each category.
In 2007, before Citizens United, the Supreme Court decided FEC v. Wisconsin Right to Life, Inc. (WRTL II). Like Citizens United, WRTL II raised questions about the constitutionality of limits on corporate spending in elections. I have described the complex facts of the case elsewhere. Here, it is enough to note that the Court held that a McCain–Feingold provision limiting corporate-funded, election-related television ads could not be applied to an ad mentioning U.S. Senate candidate Russ Feingold and his position on the filibustering of judicial nominees. Notably, the Court produced no majority opinion. In Justice Scalia’s concurrence, joined by Justices Kennedy and Thomas, he took the position that the challenged provision was unconstitutional as applied to any corporate spending.[Justice Scalia contended that McConnell and Austin should be overruled, a position the Court adopted three years later in Citizens United
Chief Justice Roberts and Justice Alito wrote a narrower (and therefore controlling) opinion that did not reach the question of whether McConnell and Austin should be overruled.They instead concluded that the only corporate-funded advertisements that the law could bar constitutionally were those that were the “functional equivalent of express advocacy,” and they read “functional equivalency” very narrowly. Applying this new test, the controlling opinion held that the ad was not the “functional equivalent” of express advocacy against Senator Feingold: it did not mention Senator Feingold’s character or fitness for office and had no other clear indicia of the functional equivalent of express advocacy.
Despite joining the Chief Justice’s controlling opinion, Justice Alito also issued a separate single-paragraph concurrence:
I join the principal opinion because I conclude (1) that § 203 of the Bipartisan Campaign Reform Act of 2002, as applied, cannot constitutionally ban any advertisement that may reasonably be interpreted as anything other than an appeal to vote for or against a candidate, (2) that the ads at issue here may reasonably be interpreted as something other than such an appeal, and (3) that because § 203 is unconstitutional as applied to the advertisements before us, it is unnecessary to go further and decide whether § 203 is unconstitutional on its face. If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n, that § 203 is facially constitutional.
Note that Justice Alito went out of his way to flag something everyone already knows: the courts are always open to an argument that old precedent should be overruled. But by emphasizing the fact that “presumably” an individual chilled by the Court’s ruling would argue for overruling McConnell in a future case, he appeared to invite litigants to raise such a challenge…..
While Justice Alito seems to be inviting litigants to argue forthrightly for the overruling of precedent when appropriate, Justice Ginsburg has directed her invitations to Congress. In a recent law review article on the value of dissenting opinions, Justice Ginsburg discusses the Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.,noting, “Another genre of dissent aims to attract immediate public attention and, thereby, to propel legislative change.” In Ledbetter, the plaintiff, Lilly Ledbetter, filed an action under Title VII alleging pay discrepancies because of her sex.[ Justice Ginsburg commented:
A fit example, perhaps, is the dissent I summarized from the bench in 2007 in Lilly Ledbetter’s case. Ledbetter worked as an area manager at a Goodyear tire plant in Alabama; in 1997, she was the only woman Goodyear employed in such a post. Her starting salary (in 1979) was in line with the salaries of men performing similar work. But over time, her pay slipped. By the end of 1997, there was a fifteen to forty percent disparity between Ledbetter’s pay and the salaries of her fifteen male counterparts. A federal jury found it “more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex.” The Supreme Court nullified that verdict, holding that Ledbetter filed her claim too late.
It was incumbent on Ledbetter, the Court said, to file charges of discrimination each time Goodyear failed to increase her salary commensurate with the salaries of her male peers. Any annual pay decision not contested promptly (within 180 days), the Court ruled, became grandfathered, beyond the province of Title VII (our principal law prohibiting employment discrimination) ever to repair.
The Court’s ruling, I observed for the four dissenters, ignored real-world employment practices that Title VII was meant to govern: “Sue early on,” the majority counseled, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience, and when you may not know that men are receiving more for the same work. (Of course, you would likely lose such a premature, less-than-fully-baked challenge.) If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the Court’s threshold for suing too late. That situation, I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation’s workplaces. “[T]he ball is in Congress’[s] court,” I wrote, “to correct [the Supreme] Court’s parsimonious reading of Title VII.”
Congress responded within days of the Court’s decision. Bills were introduced in the House and Senate to amend Title VII to make it plain that each paycheck a woman in Ledbetter’s situation received renewed the discrimination and restarted the time within which suit could be brought. Early in 2009, Congress passed the Lilly Ledbetter Fair Pay Act, and President Obama signed the corrective measure as one of his first actions after taking office.
Justice Ginsburg’s invitation in Ledbetter was clear to Congress. If Congress believes the Court got the statute wrong, “the ball is in Congress’[s] court.” And Congress took the ball and ran with it….
Invitations to litigants, such as the invitations issued by Justice Alito, may signal to a litigant that now is a good time to ask for the overturning of precedent. Although the Court cannot pick which cases come up for possible review, invitations to litigants may make it more likely for a Justice to shape the Court’s docket. This may be especially true in challenges to federal campaign finance laws, which, thanks to special jurisdictional provisions, often come to the Court on direct appeal, making it more likely that the Court will hear the case on the merits.
It is also no coincidence that Justice Ginsburg, a frequent liberal dissenter in 5–4 cases on a conservative Court, is inviting Congress to overturn the Court in statutory cases (rather than inviting litigants to bring more cases). Justice Ginsburg is less likely than Justice Alito to get her current preferences approved by the current Supreme Court, and so it is unsurprising that she is signaling Congress when there is an especially worthy Court statutory decision for Congress to consider overruling.