When Supreme Court Justice Ruth Bader Ginsburg turns reporter, reporters and lawyers start searching for clues.
In a purportedly just-the-facts speech Friday to the judicial conference of the U.S. Court of Appeals for the 2nd Circuit in New York, Ginsburg gave plenty to dissect.
She teased pending decisions in cases about whether the census may contain a question on citizenship, and if the court would for the first time decide that a state’s electoral maps are so influenced by partisan gerrymandering that they violate voters’ constitutional rights.
Be prepared for sharp disagreements as the court finishes its work this month, she said.
So far, only a quarter of the court’s decisions have been closely divided, she noted. “Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.”
With the court set to finish its work the last week of June, the justices by now know the outcomes and are writing and delivering opinions. The next batch will come on Monday.
Ginsburg didn’t give anything away, but she offered what could be interpreted as clues to her own thinking.
On the citizenship question, for instance, she laid out the facts of what she called “a case of huge importance.”
The Trump administration wants to ask everyone who receives the census form whether or not they are a citizen, something that hasn’t been done since 1950. Commerce Secretary Wilbur Ross has said the information would be useful in protecting minority voting rights.
Challengers — some states and civil rights groups — have said it would result in an undercount, because respondents would fear reporting noncitizens in their households. The motive of enforcing voter rights is pretext, they say, and the Justice Department has never before asked for such information.
Ginsburg noted census experts agree about the undercount, and that three lower-court judges have said the question cannot be added.
Then she noted legal similarities to a case from last term, in which she was in dissent.
“Speculators about the outcome [in the census case] note that last year, in Trump v. Hawaii, the court upheld the so-called ‘travel ban,’ in an opinion granting great deference to the executive,” Ginsburg said.
“Respondents in the census case have argued that a ruling in Secretary Ross’s favor would stretch deference beyond the breaking point.”
Ginsburg also mentioned the partisan gerrymandering cases — “very high on the most-watched cases list.” One involves congressional district maps drawn by the Republican leadership of North Carolina, and the other by Democrats in Maryland.
“Given modern technology, a state legislature can create a congressional delegation dramatically out of proportion to the actual overall vote count,” Ginsburg said, adding “however one comes out on the legal issues, partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa.”
Ginsburg’s remarks on the topic are hardly a surprise. The Supreme Court has wrestled for decades with the question of whether courts have a role in policing partisan gerrymandering, and Ginsburg has said in previous cases that they do.
The 86-year-old justice noted other facts about the court. With Justice Brett M. Kavanaugh hiring an all-female staff of four clerks, she said, the court for the first time in history had more women than men serving as clerks.
“Women did not fare nearly as well as advocates,” she said. “Only about 21% of the attorneys presenting oral argument this term were female; of the thirty-four attorneys who appeared more than once, only six were women.”
Because people track such things, Ginsburg noted Justice Stephen G. Breyer spoke more than any other justice during oral arguments, and that Justice Sonia Sotomayor asked the first question more than anyone else.
Ginsburg told her audience that the most important thing that had happened to the court since her address to them last year was the resignation of Justice Anthony M. Kennedy, who for years had been the most influential member of the court.
His retirement “was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead,” she said.
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