On Thursday, September 12, Justice Ruth Bader Ginsburg renewed her annual commitment to speak to first-year law students at the Georgetown University Law Center, whose faculty included her late husband, Marty Ginsburg. Ginsburg discussed highlights from the previous and upcoming Supreme Court terms, followed by a Q&A with Dean William Treanor.
In her remarks, Ginsburg first described the retirement of Justice Anthony Kennedy as one of the most transformative events on the court in her lifetime. She commended Kennedy’s replacement, Justice Brett Kavanaugh, for Kavanaugh’s historic selection of an “all-female law clerk crew.” Indeed, last term marked the first time that women comprised a majority of Supreme Court law clerks. Ginsburg pivoted to note that women are still underrepresented among Supreme Court advocates.
The justice’s term recaps and previews were noteworthy for what she chose to emphasize and what to gloss over.
Foremost from last term in Ginsburg’s view was Department of Commerce v. New York, in which the court blocked the federal government from adding a citizenship question to the 2020 census because, as Ginsburg emphasized, Secretary Wilbur Ross’ decision to add the question was “pretextual” and his justification “appeared to have been contrived.” Ginsburg also noted the government’s “extraordinary” request that the Supreme Court bypass its usual procedure and rule immediately on the case.
A few other cases – Gamble v. United States, Timbs v. Indiana and American Legion v. American Humanist Association – received brief mention, followed by a commentary on Rucho v. Common Cause and Virginia House of Delegates v. Bethune-Hill. Although Rucho placed partisan gerrymandering beyond the scope of federal courts, Ginsburg emphasized that Bethune-Hill, which concerned racial gerrymandering, was dismissed on standing grounds – suggesting that federal courts may still evaluate racial gerrymanders. She closed with a nod to Justice Elena Kagan’s “strong” dissent in Rucho and a declaration that “partisan gerrymandering unsettles the fundamental principle that the people elect their representatives, not vice-versa.”
One can read the tea leaves from Ginsburg’s remarks on the coming term to guess which cases she views as most important.
Mentioned first was New York State Rifle & Pistol Association Inc. v. City of New York, New York, a challenge to New York City’s restrictions on the transportation of personal firearms. Notably, Ginsburg made no mention of the mootness question. (New York City modified its law to redact the most contentious provisions after the Supreme Court granted cert, and the state has since barred future legislation reinstating those provisions; the city now argues that the case is no longer a live controversy and should be dismissed as moot.)
Ginsburg then turned to the workplace-discrimination cases. These cases concern whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination “on the basis of sex” – perhaps the most significant phrase of Ginsburg’s legal career, the title of a recent biopic and one which she was sure to quote – also bars discrimination on the basis of transgender identity (in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission) or sexual orientation (in Bostock v. Clayton County, Georgia).
Of the many criminal cases already on the Supreme Court’s docket this term, only Ramos v. Louisiana and Mathena v. Malvo earned nods. Ginsburg concluded with mentions of “two more cases attracting a lot of attention:” a religious-school funding case, Espinoza v. Montana Department of Revenue, and a group of cases concerning the Trump administration’s rescission of DACA, consolidated under Department of Homeland Security v. Regents of the University of California. Ginsburg wrapped up her remarks with a tongue-in-cheek understatement: “I look forward to the challenges ahead.”
She then sat with Treanor for questions. After engaging Ginsburg on her time as a law clerk and the role of law in the progression toward gender equality, Treanor posed questions pre-selected from members of the first-year class.
The first student asked Ginsburg whether she would like to weigh in on any cases the Supreme Court had declined to hear. Clarifying that the justices’ role is not “to right wrong judgments” but “to keep the law in the United States more or less uniform,” Ginsburg deflected, insisting that any question significant enough would inevitably return to the court. The justice emphasized that “when the court denies review, it stays nothing about the merits” of a case, but rather indicates a desire for “further percolation” of the issue presented.
The final question inquired what single amendment to the U.S. Constitution Ginsburg would enact if she had the power. Usually pensive, Ginsburg lost no time in responding, “An Equal Rights Amendment,” to loud applause from the audience. Why bother, Ginsburg asked? The justice pulled out a pocket Constitution to illustrate something that, without such an amendment, she currently cannot do: point her three granddaughters to a passage in our founding document that “explicitly says that men and women are equal under the law.”
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