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The Notorious RBG Speaks

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Photo - Ruth Bader Ginsberg Speaking

A couple of interesting nuggets here. First, on how Bush v. Gore has caused the liberal faction to limit concurrences and separate dissents:

It’s true, she said, that the liberal justices tried to be disciplined about having their majority opinions, and even their dissents, speak with one voice in one opinion. “The stimulus,” she said, “actually began many, many years before … when the court announced its decision in Bush v. Gore.” That was the decision in which the Supreme Court, by a 5-4 vote, put an end to the dispute over the 2000 election returns in Florida, resulting in George W. Bush becoming president.

The time pressure in the case was excruciating, with the court issuing an opinion just a day after oral arguments, and, as Ginsburg put it, the four liberal members of the court “were unable to get together and write one opinion.” Indeed, each wrote a separate dissent, resulting in such confusion that, as she pointed out, some early press accounts erroneously reported that the decision was 7-2, not as it in fact was, 5-4.

After that experience, “we agreed,” said Ginsburg, that “when we are in that situation again, let’s be in one opinion.” It’s important, she added, because the public and the lower courts need to know what the court has done or not done. And neither lawyers nor judges will stick with opinions that go on and on.

“If you want to make sure you’re read, you do it together, and you do it short,” she said. Otherwise people will neither read you nor understand what you are saying.

And some excellent subtweeting:

Ginsburg said people sometimes characterize her opinions as “dull” because she doesn’t use splashy language. But, she added, “I think some of my colleagues’ spicier lines are distracting. They draw attention away from what the justice is trying to say.”

And she observed that although several of the court’s conservatives went to great lengths to denounce Justice Anthony Kennedy’s majority opinion legalizing same-sex marriage nationwide, Kennedy simply didn’t respond, letting the criticism roll off his back, and the opinion to “speak for itself.”

When I think about Scalia’s Obergefell dissent, existing solely for the purpose of insulting Kennedy, I just picture William Brennan holding up five fingers.

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