Justice Ginsburg, in a rare interview with AP has given insight into a recent strategic choice made by the liberal Supreme Court Justices.
In a recent Slate piece, I asked whether the liberal Justices are savvy or suckers for signing on to recent voting rights and affirmative action rulings:
At first glance, the 7–1 vote in the Fisher affirmative action case decided by the Supreme Court is puzzling. While the decision about the University of Texas’ admissions policies was essentially a punt, putting off for another day the future constitutionality of affirmative action programs, two of the court’s liberals (Justice Sonia Sotomayor and Justice Stephen Breyer) joined in an opinion that seemed to impose a very tough hurdle for any program’s constitutionality in the future. (Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan recused herself). The ruling followed a voting decision the week before, when all four of the court’s liberals signed on to Justice Scalia’s entire opinion in an Arizona voting case, which plants the seeds for new state attacks on federal voting laws. And in 2009, all four liberals signed onto an opinion calling into question the constitutionality of the Voting Rights Act, an opinion that Chief Justice John Roberts relied on heavily in his new Shelby County decision striking down part of the act.
What gives? Are the liberal justices acting as suckers for going along with these opinions, allowing conservatives the time bombs to go off in future cases? If, as Adam Liptak, Emily Bazelon, and I have argued, Roberts is playing a long game to move the court far to the right over time, why are the liberals playing along?
A recent Justice Breyer speech, described by Michelle Olsen, indicated that Justice Breyer thought he was savvy to sign on to the Fisher case, as case which, as Josh Blackman recently noted, Justice Ginsburg declined to join.
But now Justice Ginsburg has expressed regrets to the AP about signing onto NAMUDNO, the 2009 8-1 decision (joined by all except Justice Thomas) which paved the way for last month’s Shelby County decision killing off the preclearance regime of the Voting Rights Act. Here’s what she told the AP (h/t How Appealing):
Roberts relied heavily on another decision from 2009 in which the justices essentially left the law alone while warning Congress about serious problems with the data and urging lawmakers to do something about it. They didn’t.
In that case, Ginsburg joined Roberts and every justice but Clarence Thomas to leave prior approval in place.
Ginsburg said she probably shouldn’t have done that. “I think in the first voting rights case, there was a strong impetus to come down with a unanimous decision with the thought that maybe Congress would do something about it before we had to deal with it again,” she said. “But I suppose with the benefit of hindsight, I might have taken a different view.”
In the same interview, Justice Ginsburg said that the push for strict voting laws after Shelby County is sadly predictable:
The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didn’t make any sense to me,” Ginsburg said in a wide-ranging interview late Wednesday in her office at the court. “And one really could have predicted what was going to happen.”
The 80-year-old justice dissented from the 5-4 decision on the voting law. Ginsburg said in her dissent that discarding the law was “like throwing away your umbrella in a rainstorm because you are not getting wet.”
Just a month removed from the decision, she said, “I didn’t want to be right, but sadly I am.”
MORE from Josh Blackman.