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At court and Constitution Center, Ginsburg is a force

With her tortoiseshell glasses, gentle demeanor, and quavering voice, Ruth Bader Ginsburg projects the quintessence of judicial demeanor and focused academic intensity.

Justice Ruth Bader Ginsburg at the National Constitution Center this month. One of the most important takeaways was that Ginsburg, at 80, doesn't sound or look as if she plans to retire anytime soon. (Matt Rourke / Associated Press)
Justice Ruth Bader Ginsburg at the National Constitution Center this month. One of the most important takeaways was that Ginsburg, at 80, doesn't sound or look as if she plans to retire anytime soon. (Matt Rourke / Associated Press)Read more

With her tortoiseshell glasses, gentle demeanor, and quavering voice, Ruth Bader Ginsburg projects the quintessence of judicial demeanor and focused academic intensity.

Yet when she slowly, and it seemed carefully, entered the second-floor auditorium of the National Constitution Center on Sept. 6 for a talk about the modern Supreme Court and its discontents, the 800 or more spectators in attendance greeted her like a rock star.

They whooped with shouts of approval and encouragement as she took the stage - an infrequent reception for a cloistered and composed associate justice of the U.S. Supreme Court.

This was a very Democratic - and liberal - crowd that had turned out for a rare public appearance by a Supreme Court justice. After all, former Gov. Ed Rendell was in the audience.

But the reaction likely had as much to do with Ginsburg's increasingly pivotal role on the court as it did with her judicial philosophy.

She was the second woman to join the Supreme Court after President Bill Clinton nominated her in 1993. Now that she is the most senior member of the court's four-member liberal minority, Ginsburg writes many of its most important dissents, as she did in an Affordable Care Act decision in 2012, and has a role in shaping the other dissents by deciding which justice will write them.

"She has tremendous mental acuity," says Temple University constitutional law professor Mark Rahdert, who clerked for Supreme Court Justice Harry Blackmun after graduating from Yale. "She has been saying that she is feeling very healthy and very energetic and that she is enjoying this new role."

During her remarkably candid 90-minute conversation with Constitution Center CEO Jeffrey Rosen, Ginsburg touched on the themes she has repeatedly stressed in her opinions as the leader of the court's liberal wing. But one of the most important takeaways was that Ginsburg, though she is 80, doesn't sound or look as if she plans to retire anytime soon.

Ginsburg has twice fought off cancer since 2009, leading to speculation that she would - some say should - step down in favor of a younger nominee of liberal persuasion who could be put forward while Democrats control the White House and the Senate. But Ginsburg gives no hint that she is slowing down. If anything, she has signaled that she is enjoying her role as the leader of the court's liberal bloc, with opportunity to influence and shape the court's opinions.

Under long-established practice, it is the longest-serving justice in the minority who either writes the dissenting opinion or chooses another justice from the group for that assignment.

Although the dissenters don't make law, they are in the minority after all, they can help shape it by writing opinions that influence other justices, Rahdert said. If the process is successful, the next time the issue comes up, the minority might find itself in the majority.

Dissenting opinions can also cause Congress to amend laws in ways that reverse Supreme Court findings, Rahdert noted.

Ginsburg touched on exactly that point during her talk with Rosen, who is a longtime friend. He was a law clerk on the U.S. Court of Appeals for the District of Columbia when she was on the bench there. The two had a mutual interest in opera and struck up a friendship. She officiated at Rosen's wedding.

With Rosen playing the role of gentle inquisitor, Ginsburg remarked that one of her most satisfying opinions was a dissent in a wage-discrimination case that served as the basis for legislation the next year, which changed the law.

Despite deep ideological divides, relations on the court among the justices are collegial, even friendly, says Ginsburg, and she remarked on her long friendship with stalwart conservative Antonin Scalia, whom she referred to by his nickname, Nino.

But the gist of what Ginsburg says in her dissents, points that she reprised at the Constitution Center, made clear how wide that divide is.

In her dissent supporting the Affordable Care Act, she described portions of Chief Justice John Roberts' opinion against it as "hard to fathom." (The act was ultimately ruled constitutional, but on other grounds and with Roberts and Ginsburg in the majority.) Ginsburg opined that the right of Congress to enact social and economic legislation was established with the onset of the Social Security system in the late 1930s. If Congress found it necessary to require individuals to purchase health insurance so that the whole health-care marketplace might function better, then it had the authority to do that, she wrote.

She went a step further in her conversation with Rosen, though.

"Health care was part of the same understanding that government does have an obligation to see that people's basic needs are met," she said.

For many conservatives, who believe that people, if they are able, are responsible for providing for themselves, that is a tough idea to swallow.

IN HER OWN WORDS

Here's some of what Supreme

Court Justice Ruth Bader Ginsburg

had to say:

On the Constitution: "The idea of We the People has become more and more embracive. People who were once kept out, people who were once slaves, women, and native Americans did not count in the beginning."

On the subject

of the court's ideological divide and relations among the justices: "We could not do the job the Constitution gives us if we did not, to use one of [Justice Antonin] Scalia's favorite expressions, get over it. Even though we have sharp disagreements on what the Constitution means, we revere the Constitution and the court."

On the Affordable Care

Act decision:

"Most countries in the world, most industrialized countries, have universal health care and had Social Security long before we did so. I saw the health-care act as just completing the flaws that the government had in its safety net.

"Health care was part of the same understanding that government does have an obligation to see that

people's basic needs are met."

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