My Favorite Three from RBG


Ruth Bader Ginsburg’s career will be remembered for so many things, most notably her work as a litigator, a law professor, a lower court judge and a Justice at the Supreme Court (where she sat for over a quarter century). Many people, quite rightly, associate her primarily with the law of gender equality—both as a constitutional and statutory matter, and both for her time as a lawyer and her service on the bench. And her impact in that arena was unquestionably enormous. But as I look back on her time on the Supreme Court in particular, the three RBG writings that I find myself most drawn to—one majority opinion and two dissents—involve three other ideas central to our distinctive form of democratic government: popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation. (It is interesting that in each of the three cases I chose, Chief Justice John Roberts was the author of the primary opinion on the other side; that may be indicative of the leadership role RBG played on the Court—essentially the “Chief” of the loyal judicial opposition. ) I hope that her successor on the Court will carefully read—and reread—the following three RBG opinions, as I am fond of doing:

The Role of the People of the States in Lawmaking: the Arizona Redistricting Commission Case

The first opinion on my list is RBG’s statement for a majority of the Court in a case from five years ago that was and is very important but that might fly below the radar for some Court observers—Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC). The case raised the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission—i.e., one that is not controllable by the elected state legislature—to devise congressional districts. Arizona voters passed just such an initiative in 2000, and the elected Arizona legislature (acting as a body) challenged the direct-democracy measure, arguing primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4)—which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”—prevents a state from divesting district-drawing power from the elected state representatives.

In short, the elected Arizona legislature and Chief Justice Roberts’s dissent took the position that the term “Legislature” in the Elections Clause refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, such that if another body—such as an independent commission—is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative.

In rejecting this argument, RBG’s tour-de-force opinion carefully parsed history and the Supreme Court’s earlier cases, and found a distinction between instances in which a legislature chooses between a small number of options—as, for example, it does when deciding whether to vote up or down on a federal constitutional amendment—and instances in which a legislature is passing generally applicable laws to govern electoral processes. Where the Constitution refers to a state “Legislature” in the context of a provision calling for state lawmaking (as opposed to amendment ratification or other functions—like picking U.S. Senators in the 19th century under the original Constitution—that do not involve fashioning general regulatory policy), “Legislature” means state lawmaking process—not any particular body of decisionmakers—and can include within its definition the people of a state undertaking direct democracy.

Indeed, Justice Ginsburg went out of her way to decide the Arizona matter on the basis of a broad constitutional reading of “Legislature” in the Elections Clause, when she very well could have simply held that a congressional statute on the books authorized the Arizona voters to do what they did. Recall that the last part of the Elections Clause ultimately gives Congress the plenary power to regulate congressional elections. Add to that the fact that the AIRC majority agreed with the commission that a federal statute in existence reflected congressional approval of use of initiatives (provided they are consistent with state law) in redistricting. In spite of this, the Court explicitly chose (contrary to so-called “avoidance” doctrines in which the Court sometimes looks for ways to dodge constitutional questions if reasonably possible) to rest its decision on a broad (and, to my mind, entirely correct) reading of the Elections Clause. Under that reading endorsed by the Court, Arizona voters would have been allowed to do what they did even absent congressional approval.

The AIRC case was right when decided, and its rightness has even greater implications now than in 2015. One stems from the Court’s ruling last year, in Rucho v. Common Cause, that the federal Constitution does not constrain partisan gerrymandering. (For an explanation of why Rucho should be read as a decision on the merits of that question, see my column here). Because the federal Constitution imposes no substantive limits on aggressive gerrymandering by state legislatures, devices like the voter-created independent districting commission upheld in AIRC are ever-more important tools to deal with the problem of excessive partisan zeal, as even the author of Rucho, Chief Justice Roberts, acknowledged. (Indeed, Chief Justice Roberts’ opinion in Rucho cites AIRC and in essence relies on it, suggesting that no current Court member seeks to relitigate the questions decided in AIRC).

The other implication relates to the National Popular Vote Interstate Compact movement, about which I have written many columns—including one here that gives background. If the NPV compact movement is to break through in a Red State (as it must in order to have success and legitimacy), a direct democracy initiative may be needed. And if (as AIRC held) “Legislature” in Article I’s Election Clause can include the people of a State acting directly, so too must “Legislature” in Article II’s provision conferring power on state legislatures to direct the manner of picking presidential electors.

Another Case About Democracy: Shelby County v. Holder

My other two favorite RBG writings are both dissents. In Shelby County v. Holder (2013), she demolished the arguments made in the opinion of the Court (by Chief Justice Roberts) that had itself unjustifiably dismantled the Voting Rights Act. There were many powerful and beautiful aspects of her dissent, but perhaps none was more elegant and compelling than the argument she made about why the Court should defer to Congress when it enacts voting rights protections pursuant to Section Two of the Fifteenth Amendment:

The basis for this deference [to Congress] is firmly rooted in constitutional text . . . . The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.” In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).

This simple yet unassailable linkage between the language of the enforcement provision of the Fifteenth Amendment—and that of the Fourteenth Amendment too—on the one hand, and the language of the so-called “Sweeping” Clause (also known as the “Necessary and Proper” Clause) of Article I, on the other, is really all you need to appreciate to understand how wrong Shelby County was. The people who wrote and ratified the Reconstruction Amendments gave Congress the same kind of broad power to implement economic and political equality that Article I had given Congress to regulate such things as interstate commerce and the armed forces. And the dominant understanding of what “proper” and “appropriate” meant after the Civil War was the one John Marshall had provided a generation earlier in McCulloch. A fair understanding and application of McCulloch should have driven the opposite result in Shelby County.

And Speaking of Misunderstanding McCulloch and Improperly Rejecting Deference to Congress . . .

And it also should have dictated the result in the blockbuster National Federation of Independent Business v. Sebelius ruling on the Affordable Care Act (Obamacare) in 2012, the year before Shelby County. True, a majority of Justices did uphold the so-called individual mandate provision (that has since been defanged by Congress) as an exercise of taxation power, but the Court majority (again led by Chief Justice Roberts) went awry on two other questions: whether the Commerce Clause also provided a tenable basis for the individual mandate, and whether the Medicaid expansion component of Obamacare was constitutional.

RBG’s dissent on both these questions was spot on. In explaining why the majority was wrong not to defer to Congress under the Commerce Clause (the way it had deferred to Congress in McCulloch when it upheld the Bank of the United States), RBG gracefully but powerfully exposed the folly of the majority’s essential argument that upholding a mandate to procure health insurance would require the Court to uphold a congressional law requiring the purchase of broccoli. She demonstrated the silliness of pandering to such a slippery slope by rightly pointing out that Congress has undeniable power to prohibit (as opposed to mandate) purchase of products, such as drugs and foodstuffs, and yet that doesn’t keep us up at night:

As an example of the type of regulation he fears, the Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.” Congress, the Chief Justice posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. . . .

[Yet] [w]hen contemplated in its extreme, almost any power looks dangerous. The commerce power, [under settled precedent] would [already, hypothetically] enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y],” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).

In essence, she called upon the Justices to be judges and do what judges do when confronted by slippery slopes—to make use of the readily available supply of pitons available to it (such as the requirement of a proximate relationship to a plausible need to regulate a national market due to market externalities or imperfections) to arrest our slide and limit the scope of federal power under the Commerce Clause.

And on the Medicaid expansion question, as to which the Court said the deal offered to the states in the Affordable Care Act was coercive because Congress was unilaterally changing the terms of an original deal it had essentially promised states it would not change, listen to her powerful words:

Consider . . . that Congress could have repealed Medicaid. Thereafter, Congress could have enacted Medicaid II, a new program combining the pre-2010 coverage with the expanded coverage required by the ACA. By what right does a court stop Congress from building up without first tearing down?

As with the other RBG writings I have featured here, the Chief Justice, in opposition, had nothing very satisfying to say in response; his rejoinder that repeal “certainly [would] not be that easy [because of] practical constraints” does little to address RBG’s point about congressional power—not the practical ease with which the power might be exercised—which is the relevant question when it comes to constitutional permissibility. Perhaps there was a marginally better comeback to be made (such as the fact that the text of the original Medicaid Act contemplated the possibility of repeal but not substantial revision), but the majority did not offer one. The Chief Justice is a brilliant lawyer and thinker in his own right; to clearly get the better of him in three big cases like these is no mean feat. That is just one of the innumerable reasons RBG will be missed.

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