Ruth Bader Ginsburg says "I am certainly not going to retire before I get my Albers back."

(Via CNS.)

"Her womb was a barren desert in which my seed could find no purchase."

April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."

What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?

But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.

"The talk in Washington is what the impending elevation of the former Harvard Law School dean and solicitor general will mean for the capstone of the judiciary."

Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?

To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.

But, as I told my dinner companion...

Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!

... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.

Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.

I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s. 

Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted —  refudiated! — by the fact that you are still here writing this column.

They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.

And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.

The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.

They saw the candidates' lives whole...  Broder's elevated diction goes wild.  The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....

He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.

They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.

Look out! The floodgates have opened! Broder's going back to 1960!

It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.

Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?

I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.

That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his...  eminent dome... his venerable cranium... his... nugatory noggin.

The Christian Legal Society loses its 1st Amendment challenge to the accept-all-comers policy required by Hastings Law School.

Justice Ginsburg writes for the majority in Christian Legal Society v. Hastings College of the Law, answering yes to the question: "May a public law school condition its official recognition of a student group — and the attendant use of school funds and facilities — on the organization’s agree­ment to open eligibility for membership and leadership to all students?" The CLS wanted to restrict membership to those who would sign a "statement of faith" and to exclude those who engage in "unrepentant homosexual conduct."

Justice Ginsburg expresses deference to the law school's reasonable and "viewpoint-neutral" policymaking:

Hastings... could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes—and to build this expectation into its educa­tional approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.

That final "if" is important, and it takes a lot of the wind out of the sails of the dissenting opinion written by Justice Alito. From the dissent:

In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague.

The majority is deferring to the law school, and not preemptively dealing with this other situation which hasn't happened and which it would prefer to trust the law school to deal with if in fact it ever does happen.

***

Note: Justice Ginsburg was present in Court for the announcement of today's opinions, even though her husband died yesterday.

"Marty Ginsburg was known in Supreme Court circles as Justice Ginsburg’s secret weapon."

"Justice Ginsburg herself can sometimes be shy, awkward, and introverted, but her husband was gregarious, charming, and a great entertainer.... Martin Ginsburg’s passing is undoubtedly a great loss to ... Justice Ginsburg, to whom he was married for 56 years...."

Reading this, I put my face in my hands for several minutes and cried.

Tom Goldstein predicts the outcomes (and the authors) of the final 4 Supreme Court cases of this Term.

To be announced tomorrow morning:

1. Bilski v. Kappos:

The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.

2. Free Enterprise Fund v. Public Company Accounting Oversight Board:

[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.

If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....

3. McDonald v. City of Chicago:

[T]he only Justice not to write from [the February] sitting is Justice Alito....

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....

4. Christian Legal Society v. Martinez:

Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....

Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students

We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.

"Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx."

When Kagan is confirmed, there will be 4 Justices from New York City — but they're not all from the same place. Each is from a different borough, and that makes them, in fact, very different. Immense diversity.

"Why are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty?"

Justice Scalia amusingly squelches in the oral argument that the Supreme Court ought to use the Privileges and Immunities Clause — instead of the usual Due Process Clause to find the 2d Amendment applicable to state and local government. The case is McDonald v. City of Chicago, and SCOTUSblog describes the argument and explains why it's quite likely the Court will find the right to bear arms to extend to state and local government.

The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why [Alan Gura, the lawyer for gun rights advocates,] would “undertake that burden.”  And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions–  was available as the vehicle for incorporation, and added: “Even I have acquisced in that.”   Gura somewhat meekly said “we would be extremely happy” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’t that trouble you?”  It was obvious that it troubled the Court.)

"On Sunday, President Barack Obama will execute what might be called a Modified Full Ginsburg..."

"... appearing on five Sunday morning talk shows to make a pitch for health reform. It’s a move few politicians have attempted. Even fewer have been able to stick the landing. The Full Ginsburg, of course, was named for Monica Lewinsky’s lawyer William Ginsburg, who first did the five-fecta of Sunday talk on Feb. 1, 1999."

Of course. Wow. Some people need to get out of Washington more. Does Politico writer Eamon Javers really think that that we all remember the name William Ginsburg and his overexposure on Sunday shows 10 years ago? Or is this just another inane use of the verbal filler "of course"?

When I saw "Full Ginsburg," I thought of Ruth Bader Ginsburg...

... and "The Full Monty"....

... and I wasn't sure what to think.

A naked, yet prim President?

Anyway, yeah, too much Obama on TV. At some point, everyone's going to figure out that he actually is pretty tedious and that he's pushing some routine old political ideas.

That's good. We should get used to him. Very very used to him and tired of him.

And when that happens, it won't be racism. It will be racial progress. He's only a man. A politician. Calm down everyone. Think about whether we really want what he's selling. I bet we don't.

Let's analyze this picture of Obama and the Justices (and Biden).

Keep in mind that this is the shot the White House chose to put up on its Flickr page. (There's also this pic of Obama shaking hands with his appointee Sonia Sotamayor — with Scalia looking thoroughly delighted.)


(Enlarge.)

That's Biden, on the left, with his back to the camera, talking to Breyer and Roberts. The charming Roberts looks charmed by the gasbag VP, while Breyer — though more liberal than Roberts — looks like he's sleeping on his feet.

The short hulk by himself with his back to the camera is Scalia. Also alone, lurking in the background, is the newest Justice, Sonia Sotomayor. Or is Ruth Bader Ginsburg back there too (in the ladies section?) out of camera range?

Brooding over on the extreme right are Justice Thomas and Alito.

In the center, there's the President. As Stevens looks on, Obama laughs at Justice Kennedy's vain effort to enlist the Prez in a game of pattycake. Oh! Pattycake! Such fun!

IN THE COMMENTS: Freeman Hunt says:

Imagine holding a party. Your spouse takes pictures. When the guests leave, you say, "I'll email a group picture to you all."

The guests check their email accounts the next morning to find a picture wherein all of them have their backs to the camera or are by some other means obscured. Except you. You stand, fully visible, smiling broadly, center frame.

He he he.

"And yet in her perfection, she actually sounds hood to me."

Ta-Nahesi Coates assesses Sotomayor's enunciation.

Hmmm. I'll just note that Ruth Bader Ginsburg and Sandra Day O'Connor also over-enunciate. It actually sounds judge to me. Perhaps lady judge.

UPDATE: I've misspelled Coates's first name, and he's cursed me and connected me to racism because of that. Maybe spelling to him, like pronunciation, rubs a sore spot.

"It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position."

"I understand that supporters of Judge Sotomayor are claiming that she has been 'vindicated' by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president 'lawless.' They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position. Fortunately, liberal commentators seems to be 'growing in office.'"

Quality snark from Power Line, which links to this Stuart Taylor piece explaining why, in fact, the 4 dissenting Justices were not on the same page as Sotomayor:

[E]ven Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base....

[W]hile Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

"The public is watching and needs to see that, particularly, when the system is under stress, the law will be honored..."

"... and an independent judiciary will properly scrutinize the actions of the massively power[ful] executive branch."

From the brief by Indiana Solicitor General Thomas Fisher, asserting the interests of state funds and seeking to stay the Fiat/Chrysler deal. Justice Ginsburg granted the stay.

Mental retardation as a mitigating factor ≠ mental retardation constitutionally barring execution.

These are 2 different issues, the unanimous Supreme Court said today. And Justice Ginsburg, the author of the opinion, schools the Sixth Circuit in the law of issue preclusion:

[M]ental retardation for purposes of Atkins, and mental retardation as one mitigator to be weighed against aggravators, are discrete issues. Most grave among the Sixth Circuit’s misunderstandings, issue preclusion is a plea available to prevailing parties. The doctrine bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding. The Ohio courts’ recognition of Bies’ mental state as a mitigating factor was hardly essential to the death sentence he received. On the contrary, the retardation evidence cut against the final judgment. Issue preclusion, in short, does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties.

Ouch.

"Among jurists with whom I have served, Justice David H. Souter is the very best."

"His level of preparation for the cases we consider is astonishing. He works so hard at getting it right. He is a genuinely caring man and a model of civility. Never have I heard him utter a harsh or unkind word. I count it my great good fortune to have known him as a working colleague and dear friend."

The Justices of the Supreme Court give their tributes to Souter. I've quoted Ruth Bader Ginsburg's because it's the nicest. To say he's the very best is daringly disrespectful of all the other judges. And all that business about caring and civility and kindness makes you want to be a better person, doesn't it?

Should Congress scrutinize the aging Supreme Court Justices and lean on them to retire?

Paul D. Carrington thinks so:

What can we do about justices who cling to power that they are no longer completely fit to exercise? District and court of appeals judges are subject to Circuit Judicial Councils, which look into citizens’ grievances against their conduct (though not their specific rulings).

Councils may then investigate and conduct hearings in confidence, and then perhaps order that at least temporarily no further cases be assigned to the judge whose conduct is in question. A council may censure a judge either privately or by a public pronouncement, or request his retirement. If a judge rejects a council’s advice, it could issue a statement to be considered by the House of Representatives that might initiate an impeachment proceeding.

Congress could establish a very similar process to apply to the justices....

This is not to suggest that any of our current Supreme Court justices should be addressed by such a discipline committee. But the mere existence of such a process would serve to remind our mortal justices that they have a right to serve during good behavior, not for life.

I don't think this is such a great idea. We all can see what the Supreme Court Justices are doing. There's no need for a special council with the work of scrutinizing them. It would either be too political — pressuring Justices based on how much various politicians like or want to appear to like the outcomes they've voted for — or it would be suspected of being that.

All that is needed is more frank discussion of age and its effects on the Justices, who don't get enough real-life feedback. Take this article — "Ginsburg Gives No Hint Of Giving Up the Bench," by Robert Barnes — published yesterday in the Washington Post:

The symposium on Justice Ruth Bader Ginsburg's life on and before the Supreme Court had all the trappings of a grand finale: laudatory tributes, scholarly evaluations of her jurisprudence, a running theme about her love of opera and her unfulfilled desire to be a great diva.

Conspicuously missing was any mention of an exit from the stage.

If anything, Ginsburg's appearance at Ohio State University's Moritz College of Law -- and at a host of other events since the 76-year-old justice had surgery in February to remove a cancerous pancreatic tumor -- seemed intended to send a contrary message....

In a video tribute shown at Friday's day-long symposium, Chief Justice John G. Roberts Jr. offered "my warm congratulations on the occasion of your reaching the midpoint of your tenure."

The midpoint. Get it? Oh, isn't that cute? Nothing but warm support and encouragement for staying on as long as her heart desires it.

But I bet we can't stop talking like that. It would be mean. And it's wrong to discriminate based on age. Blah blah blah blah. Ugh! Maybe I should endorse Carrington's proposal!

"First, I wanted people to see that the Supreme Court isn't all male."

"I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months."

Senator Bunning won't be contradicted until November, but good luck.

Obama's address to Congress... the live-blog.

Watch the don't-call-it-the-State-of-the-Union with me.

8:00: How come there are already 43 comments? The thing hasn't started yet! I suppose you guys are really excited about this. Nancy Pelosi has her olive-green sweatshirt on. I've chosen CBS... Katie Couric is obviously reading from a script.

8:04: Ruth Bader Ginsburg! Among the living! Closeups. Cheers.

8:05: Michelle Obama. Sleeveless! Purple!

8:06: Hillary! Looking radiant. Rahm! He's hot.

8:11: It's O! Red striped tie. Super-short hair. He's kissing all the ladies. The CBS commentary is soooo lame. This is true bipartisanship... except to the extent that it isn't....

8:15: Oops! O spoke over Nancy. Is Chief Justice Roberts there in the audience laughing?

8:20: We have terrible economic problems, but we're going to solve them. To do that, we need to understand how we got here. Then he lists various reforms — like health care — that I think he'd be listing even if there were no economic crisis. I can't see the connection between his economic wish list and the crisis at hand.

8:25: The text of the speech. Great, now like Nancy Pelosi, I can read along. It would be cool if Nancy had her laptop up there and was live-blogging.

8:31: Damn those executives with their jets and fancy drapes! No drapes for you!

8:33: Screw Wall Street but I love small business. Just be small and I will love you.

8:34: "Slowly, but surely, confidence will return, and our economy will recover." There's no lilt of hope in that. Whatever happened to all the hope? This is leaden and lecture-y.

8:37: Which member of Congress is most obviously up past his bedtime? I'm going to say Charles Rangel.

8:40: "It will be the goal of this administration to ensure that every child has access to a complete and competitive education – from the day they are born to the day they begin a career." So... no child left behind?

8:51: Orrin Hatch's name is invoked. We see him reading the speech and grimacing at his own name. He is not a prideful man.

8:59: Obama supports the troops.

9:03: Now, he's in the generic inspiration, listing-of-the-heroes part. Some businessman handed out money because "I didn't feel right getting the money myself." See, rich folk? Cough it up.

9:08: "Some day years from now our children can tell their children that this was the time" — oh, he's doing "this was the time" again — "when we performed, in the words that are carved into this very chamber, 'something worthy to be remembered.'" That was a goofy crescendo. I mean, paraphrase it: In the future, we'll look back and say that we remember doing something.

9:09: "And God Bless the United States of America." He almost forgot to say it.

9:22: Waiting for Bobby Jindal.

9:24: "Happy Mardi Gras!" Bobby's all enthusiastic about Barack Obama, the first African-American President!

9:26: Bobby learned a can-do attitude from his immigrant dad. His emphatic hand gestures are not quite in the camera frame. But I think his style is pretty good, though it sounds super-rehearsed. Somebody taught him every inflection I think. And that eye contact. It's a bit unnerving!

9:29: Jindal is nicely upbeat and confidence-inspiring. Don't monitor volcanoes! Monitor the eruption of spending!

9:35: The GOP wants to win back our trust.

9:37: Bobby: plastic and peppy. But maybe we'll get used to him.

After Ginsburg? "A woman? It seems certain. It’s inconceivable that the Court could be all-male...."

Jeffrey Toobin thinks Obama might pick a non-judge — maybe Janet Napolitano or Jennifer Granholm. Of the judges, Toobin flags: Sonia Sotomayor, Diane Wood, and Elena Kagan.

Think it's in bad taste to launch into talk about replacing Ginsburg as soon as we hear of her cancer treatment?

What's in worse taste?
	Talk of replacing a Justice the instant we hear of her cancer treatment.
	An elderly Justice remaining on the Court when seriously ill.
pollcode.com free polls

While we're at it:

If the Ginsburg seat is vacated is it necessary to replace her with a woman?
	Absolutely. We cannot have an all-male Court.
	The President should use a sex-blind selection process.
	The President should give some consideration to the sex of the Justice, but not too much.
pollcode.com free polls

"U.S. Supreme Court Justice Ruth Bader Ginsburg had surgery today for pancreatic cancer."

CNN reports.