The Supreme Court is in a liminal state this summer. With the departure of Justice Anthony Kennedy, and the confirmation fight over his successor stretching into a second month, the court finds itself suspended between the end of one era and the dawn of the next. It is little wonder, then, that the justices on the speaking circuit are fielding questions about changes both big and small. Audiences at judicial conferences, lectures and post-theater talkbacks want to know: What do the justices see on the horizon — for themselves and for the institution?
The justices deployed a variety of tactics in handling such queries, ranging from serene acceptance of the things they cannot change (everyone on the subject of Kennedy’s retirement), vigorous defense of the status quo (Chief Justice John Roberts and Justice Elena Kagan on cameras in the courtroom, Justice Ruth Bader Ginsburg on term limits), defiance (Ginsburg on her own retirement), and outright refusal to answer (Justice Stephen Breyer on the erosion of norms in the confirmation process).
The chief justice, in attendance at the U.S. Court of Appeals for the 4th Circuit’s Judicial Conferencein White Sulphur Springs, West Virginia, on June 29, described his outgoing colleague Kennedy as “an extraordinary man and extraordinary jurist,” “deeply committed to collegiality and civil discourse” and “very keen on improving civic engagement and making sure people [understand] their heritage.”
Asked about recent studies showing that female justices and advocates are interrupted more frequently during oral arguments, Roberts pushed back against the idea that sexism animated these interruptions and offered some insight into his role as the court’s referee:
I follow a very strict rule when two justices are trying to talk at the same time. Like everything else in the building, we go by seniority. So I will call upon the more senior justice, whether it’s Justice Kennedy or Justice Ginsburg. The other women we have on the bench are more junior, so if there’s an interruption when somebody else is asking a question, it’s more likely to be deferred in favor of the more senior justice, as a general rule. But other things to take into it–that I think just the number of interruptions is hard to capture–if someone has been talking an extended period of time, then I might let another justice interrupt the questioner, just to balance things out. And also, even topically: if the questioning has been on one particular issue, and I know the other justices want to get in on another thing, I might let things flow that way.
Roberts conceded, however, that “it is something, I think, if people are pointing it out, it is something we have to be very sensitive to and keep an eye on it.”
On the subject of televising oral arguments, Roberts claimed that the court is already the “most transparent” branch in government. “I don’t know what institution has been improved by being televised. I know a lot that have been harmed by it, and my judgment is that it has the potential of hurting the Court… I don’t want to have to think, OK, how would that sound to however many people watching at home? Are they going to understand the dynamic of what [oral argument is] like? Particularly if you get sound bites plucked out and you don’t realize, he wasn’t really saying this, that was a hypothetical that was posed to a lawyer.”
Video of the chief justice’s talk is available on C-SPAN.
At least two of the justices booked teaching gigs in Italy this July. Justice Neil Gorsuch co-taught a course on national security and separation of powers in Padua, Italy, as part of the George Mason University Antonin Scalia Law School’s National Security Institute, while Ginsburg taught at the Loyola University Chicago School of Law’s Rome Study Law Abroad program.
In addition to Europe, Ginsburg also traveled to Israel for a string of engagements. On July 4, she appeared in Tel Aviv to accept the inaugural Genesis Lifetime Achievement Award from the Genesis Prize Foundation, an event that Andrew Hamm covered for this blog. The next day, Ginsburg went to Jerusalem for a screening of the documentary “RBG,” followed by a conversation with former Israeli Supreme Court President Dorit Beinisch at the United States Embassy on July 6. Coverage of the “RBG” screening and the Beinisch discussion comes from the Jewish Telegraphic Agency and Haaretz, respectively.
Ginsburg was back in the United States by the end of the month, participating in a July 29 talkback session after a New York performance of the play “The Originalist.” There, she stated her intention to remain on the bench for at least another five years. Whereas Ginsburg once used Justice Louis Brandeis (who retired at 82 years of age) as a benchmark, she now looks to a more recent justice as inspiration. “I’m now 85. My senior colleague, Justice John Paul Stevens—he stepped down when he was 90, so I think I have about at least five more years.” According to CNN, Ginsburg also dismissed the idea of abolishing lifetime tenure. “You can’t set term limits, because to do that you’d have to amend the Constitution… we hold our offices during good behavior. And most judges are very well-behaved.” The Associated Press and American Theatre carried additional coverage of Ginsburg’s remarks.
On July 31, Ginsburg spoke to congressional interns in Washington as part of the Committee on House Administration and the Senate Committee on Rules and Administration’s Summer Intern Lecture Series.
The next day, she gave her annual overview of the preceding term, hosted by Duke Law. Ginsburg began by noting that Kennedy announced his retirement at the court’s closing conference. “I will miss the pleasure of [Justice Kennedy’s] company at our conference table, his helpful suggestions on circulating opinions, his recommendations on art exhibitions to visit with my chambers staff, and much more.” While on the subject of changes at the court, Ginsburg also made sure to point out the court’s embrace of electronic filing, and its greater-than-usual number of high-profile disputes, this past term. “After a term of challenging cases and issues, and an unusually high number of 5-4 decisions, as I see it, we’ve earned our summer break,” the justice declared. “I hope next term we will get back to our usual 15% sharp division, rather than 40%.” Video of Ginsburg’s discussion is online, with media coverage coming from the New York Times, The National Law Journal and Duke Today.
At The Aspen Institute’s McCloskey Speaker Series on July 7, Breyer was asked what he wants the American people to keep in mind as the confirmation process for a new nominee begins. Breyer responded: “[The Constitution] lays out some frontiers… Within those frontiers, which are broad, people make up their own minds. And that’s why if you don’t like what’s going on, you go to the ballot box.” Breyer cheerfully refused to answer questions about his feelings on the obstructed Supreme Court nomination of Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, but he did dispense advice for remaining civil at work: “If I feel heated, and I might, in some case, the thing for me to do is to sit there like this” — and here Breyer assumed a placid stance, with his hands folded — “and in the evening, I tell [my wife], ‘I felt heated.’” Video is available on YouTube. The Aspen Times and the National Law Journal covered the appearance.
On July 13, Kagan spoke to congressional interns (as part of the same series that Ginsburg had participated in earlier). A couple of weeks later, during a Q&A session organized by the University of Chicago Institute of Politics, a student inquired what Kagan thought of the “precedent” of not confirming a Supreme Court justice in an election year. Kagan pushed back against the idea that this was, in fact, a precedent: “It’s hard to know what exactly the precedent is. These rules, they change a lot. It all depends. There might be an election year in which somebody will say, that’s the rule, and the next election year, somebody will say, that’s not the rule. It wouldn’t depend, I’m saying, on that rule existing for a long time. It seems to be a little more case-specific than that.”
She then pointed out the increasing partisanship of the Supreme Court confirmation process. Citing Senate votes on controversial and outspoken justices like Ginsburg and Justice Antonin Scalia, Kagan lamented:
From the Court’s point of view, it was a lot nicer and a lot better when everybody was confirmed by these lopsided votes… There have definitely been periods where the expectation has been, if you have a certain set of qualifications and if you look like you’re going to be a responsible judge–even if somebody thinks there’s going to be some set of rulings which they’ll disagree with—the expectation was that nonetheless, the President was entitled to his Supreme Court bid. That appears not to be the case anymore, and it’s hard to know how to get back to that. There’s so much tit-for-tat that goes on in these processes. Everybody has their list of times that they’ve been wronged. Republicans have their list, Democrats have their list, and they seem to be, over time, ratcheting up the level of conflict rather than trying to find ways to ratchet it down.
On bringing cameras into the courtroom, Kagan echoed the chief justice’s remarks at the 4th Circuit judicial conference: “I think the Court is going to try and resist that … Is there any informed person in the world who thinks that Congressional hearings became better when they put cameras inside those hearing rooms? The answer to that is no. Cameras in a Congressional hearing room have worked no end of damage to the seriousness of those proceedings… People can use video in ways that might be quite damaging to the way we view our process.”
Justice Sonia Sotomayor traveled to Mobile, Alabama, for the August 9 keel authentication ceremonyof an Expeditionary Fast Transport ship that will be known as the USNS Puerto Rico. As the ship’s sponsor, Sotomayor welded her initials into the keel plate. According to AL.com, the justice spoke about her family’s history of service in the U.S. armed forces: “We serve Puerto Rico proudly and serve the United States even more proudly.” Additional coverage comes from the Naval Sea Systems Command.
As for the man whose departure may alter the course of the court for generations to come: Kennedy, who officially took senior status on July 31, spent his summer returning to places he loves, co-teaching at McGeorge School of Law’s Salzburg, Austria program and taking on several speaking engagements in his home state of California.
As reported by the San Francisco Chronicle, Kennedy spoke at the Bohemian Club’s annual retreat in Monte Rio on July 20. A week later, at the U.S. Court of Appeals for the 9th Circuit’s Judicial Conference in Anaheim, he was asked what he planned to do with his time as a retired justice. Kennedy mused about “special assignments for the Chief Justice” and “maybe sitting on other circuits,” before noting that criminal justice reform is “very high on my agenda of things to do.” Solitary confinement is “wrong,” he explained, and “our sentences in this country are eight times longer than sentences for the comparative crimes in England and Western Europe. So we must always think about improving the rule of law.” Video of the discussion is available on C-SPAN.