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Vol. LXII, No. 44
Wednesday, October 29, 2008
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Justice Ginsburg Terms Roe “An Easy Target” During PU Talk About Workings of the Court

Dilshanie Perera

“We have no guns in our arsenal, but we do have over 200 years of history,” said Supreme Court Justice Ruth Bader Ginsburg of the tools of the Court last Thursday during a conversation with Princeton University Provost Christopher Eisgruber.

Covering topics as varied as friendships among the justices, favorite provisions in the Constitution, and Roe v. Wade, Ms. Ginsburg spoke about her tenure on the bench to a completely packed house at Richardson Auditorium, at one point observing that the 1973 Supreme Court decision on Roe was “an easy target” that “became a rallying point for people who disagreed with choice.”

Regarding the case, Ms. Ginsburg said that the decision, which passed seven-to-two, “wasn’t a big surprise,” but what was surprising was “how far the Court had gone.”

“I think the Court bit off more than it could chew,” she said, adding that “there would have been an opportunity for dialogue with state legislatures” to “reduce restrictions on access to abortion” had the ruling been slightly different.

At the time of the case, Ms. Ginsburg characterized laws regarding choice as “in a state of flux” and noted a “gradual opening up” of abortion legislation. “Of course it has to be the woman’s choice, but the Court should not have done it all,” she said. “It is dangerous to go to the end of the road when all you see in front of you are a few yards.”

Prior to discussing Roe v. Wade, Ms. Ginsburg commented on the “lighter side of the Supreme Court,” speaking about “some customs that provide collegiality” among the justices. “The day begins with handshakes — 36 of them, to be exact” she said, explaining “It’s a way of saying even though you circulated that nasty dissent yesterday, we’re in this together, and we’re here to make decisions.”

After drawing laughter from the audience when she revealed that “on Justices’ birthdays we sing ‘Happy Birthday,’ which is usually led by Justice Scalia, since he’s the only one who can carry a tune,” Ms. Ginsburg acknowledged that the Justices “have sharp differences on certain issues,” including the death penalty, campaign financing, access to courts by detainees at Guantanamo Bay, but “remain good friends and people who respect each other.”

“One-fourth to one-third of the time we agree unanimously, and just 11 cases split the court five-to-four,” Ms. Ginsburg remarked, saying that even if “our mutual respect is touched momentarily,” the Justices know that “the institution we serve is far more important than the egos of those who serve the court bench at any given time.”

During the discussion portion of the event, Mr. Eisgruber posed questions that students had sent him regarding the workings of the Supreme Court, and specific cases. He joked about how Bush v. Gore, the case that effectively ruled the 2000 presidential election in favor of George W. Bush, had almost made his students skeptical of his own pronouncements, since Mr. Eisgruber didn’t think the Court would take the case, or be anything but unanimous in making a decision when they did.

“I would have made the same prediction,” Ms. Ginsburg admitted, saying that the case “has never been cited by the Court since that time, and I believe it never will be.”

As the only female justice on the bench, Ms. Ginsburg is known for having campaigned for women’s rights before her appointment to the Court in 1993 by President Bill Clinton. “I was born at the right time and was in the right place when a revived women’s movement was vibrant in our society” she said, noting that women had been making similar arguments for equal rights prior to that time.

When asked how she would “grade America’s progress” especially with respect to women’s rights, Ms. Ginsburg responded, “We may not be number one, but my goodness how this society has moved in my lifetime.”

Gently chiding Princeton University’s one-time practice that “almost led to litigation,” Ms. Ginsburg spoke about a youth summer program in engineering that was only open to boys. When asked why the program was gender-restricted, she said that the response was, “It’s an intense program, and we can’t have little boys distracted by little girls.”

To say or believe something like that “would be wholly unthinkable today,” said Ms. Ginsburg, pointing to the progress in the country’s perceptions toward women over the past few decades.

The 14th amendment, which was instrumental in the Roe v. Wade decision, is Ms. Ginsburg’s “favorite provision” in the Constitution, especially the end of Section 1, which reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

“I do not think this Constitution is a document that is frozen in time,” Ms. Ginsburg said. Her view exists in sharp contrast with other justices on the bench who are known to be strict constructionists. Calling the courts “reactive institutions,” she listed the “two great questions running through the law,” namely, “Who decides?” and “Where do you draw the line?”

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