243. Justice Ginsburg believes in something!

This blog was never intended to devote as much space to Justice Scalia as it has.  The frequency with which his name appears in these posts isn't the result of an unhealthy obsession - okay, isn't solely the result of an unhealthy obsession.  It's mainly the result of his penchant for saying interesting and provocative things, both in his increasingly-frequent public appearances and in his opinions.

That, and the fact that no one else on this Court says anything interesting or provocative, ever.

The late Chief Justice had lots of personality and an easily-discernible philosophy of judicial government.   In Rehnquist's view, the authority of the judiciary came first, conventional conservative ideology second, the worrying about the facts of the individual case was sentimental nonsense.  Justice O'Connor had a solid grasp of courtroom reality.  But they're gone. 

It's too soon to say much about the new Chief Justice or Justice Alito, and since Roberts has revealed he was only kidding when he told Congress during his confirmation hearing that he thought the Court should hear more cases, it might always be too soon to say much about them.

The real meaning of the Court's shrinking caseload, a meaning that for some reason commentators seem reluctant to recognize, is that this is an extremely low-functioning Court.  Every few weeks it stirs itself to tell another lower court, picked apparently at random, that it was wrong about something or another - the issue likewise picked seemingly at random - and then, exhausted, it takes a three-month vacation.  It's become like a  pit bull that's gotten too old and lazy to maul every passing toddler, but still enjoys the odd romp-and-tear from time to time.

Putting to one side Scalia, Alito and Roberts, what's left are people who never practiced enough law to be considered for partnership at your average law firm (Breyer, Ginsburg, Thomas), or who are judicial bureaucrats in DMV sense, taking vacations at their desks or scheming for power within the organization (Ginsburg, Breyer, Kennedy), or who possess no personality (Breyer, Ginsburg, Kennedy, Souter) or no discernible ability to think coherently (Breyer, Ginsburg, Souter).

Only two names appear in each of those categories.  President Clinton's second-worst domestic policy decision was signing the media-monopolization bill.  The decisions that tie for third place take up space on the Supreme Court. 

I used to think that Ginsburg just retired into the job - she simply stopped working upon confirmation.  It's not unusual for appellate court judges to do that, and she hasn't written a single memorable - or even interesting - opinion in her 13-plus years.  She's been a vote, and a person willing to sign the workmanlike opinions assembled by her dutiful clerks, and that's about it.  If not for her gender, she would go down in history as one of those names that even people interested in the Court's history have trouble placing, like Daniel, Todd or Curtis.

But lately it's occurred to me that Ginsburg might actually have a philosophy, or at least an agenda.  The evidence, admittedly, is scanty, and perhaps I'm reading too much into it (or giving her too much credit). 

A little background is necessary.  In 1948 and again in 1966, Congress passed statutes saying that a federal court hearing a habeas corpus petition filed by a state prisoner must begin with the presumption that any factual finding by the state court was correct.  On the face of it, this meant that federal courts should defer to a state court's finding that a prisoner had waived a federal right

But, as as Louis Brandeis once wrote in a letter to presidential aspirant Bob La Follette, "It has been my experience that no rule of law is so clear and no array of evidence so conclusive but the Court can escape from a conclusion which it is disinclined to reach."  (I can't find a link to this on the web - it was a letter of May 26, 1911.)

To get around Congress, federal courts began holding that a state court's finding of waiver wasn't a finding of fact, but rather was an issue of federal law.  This was magic-wand jurisprudence, a mere formula of words, and in 1983 the Court ruled that federal courts really ought to follow the law, instead. 

But twelve years later, the Court resurrected the overly-cute little evasion.  Justice Ginsburg's opinion gave no indication that she knew she was doing something the Court itself had said was illegitimate - it didn't even cite the earlier opinion - which I was inclined to attribute to ignorance rather than sneakiness.

 But I might have been underestimating her, or rather overestimating her intellectual integrity.  Just this year she ruled that the Constitution gives the Court authority to overrule a state supreme court on an issue of state law - an authority every prior generation of justices (and even Ginsburg herself) had denied the Court possessed.  (See post 230.)  Again, her opinion didn't acknowledge the significance of what she was saying, and again that's possibly attributable to ignorance, but how ignorant can one justice be?

Then, just this week, she filed a dissent in which she implausibly claimed to believe that when Congress referred to an application for state review in the habeas corpus statutes, it meant application for state or federal review.  Her position, if it had been adopted by a majority of the Court, would have given federal courts additional power over state courts, by allowing them to reach cases that would otherwise be placed beyond their grasp by the statute.

Do you see a pattern in this?  I don't think I'm imagining it.  Finally, after 13 years, I've figured out something that Justice Ginsburg believes in: reordering the hierarchy of courts into a single totem pole, with the state courts on the bottom and Justice Ginsburg herself, hunched like a diminutive vulture, perched on top.