WASHINGTON | Justice Ruth Bader Ginsburg says the Supreme Court shut down tactics used by opponents of abortion and affirmative action in higher education in two major cases the justices decided at the end of their just-concluded term.
Ginsburg said in an interview with The Associated Press in her court office late Thursday that she doesn’t expect to see any more of those cases after the court upheld the use of race in college admissions in Texas and struck down Texas abortion-clinic regulations that the state said were needed to protect patients.
“It seemed to me it was a sham to pretend this was about a woman’s health,” rather than making it harder to get an abortion, Ginsburg said.
The 83-year-old justice and leader of the court’s liberal wing talked about the term in which she lost her best friend on the court and, partly as a result, was on the winning side of most of the high-profile cases. Justice Antonin Scalia died in February, depriving his conservative allies of a reliable vote and leaving eight justices to decide nearly five dozen cases.
President Barack Obama has nominated Judge Merrick Garland for the ninth seat, but Senate Republicans have refused to hold a hearing or vote on Garland’s nomination. Even if the Senate were to confirm Garland after the election, the court probably would hear three months of cases without him, Ginsburg said.
And if there’s no action in a post-election, lame-duck session of Congress, the vacancy could last the entire term, she said.
Ginsburg conceded that she was presuming that Democrat Hillary Clinton would be the next president, so that either Garland or a Clinton nominee would join the court.
But what if Republican Donald Trump won instead? “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”
Everything, in her estimation, includes the future of the high court, where she is the oldest justice and two others are in their late ’70s.
“It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg said with a smile.
She didn’t sound as though she is preparing to step down soon and shows no signs of slowing down. Ginsburg said she has been catching up on sleep since the court finished its work last week before a busy summer of travel that will take her to Europe and, as is her custom, as much opera as she can fit in.
She disputed reports that the court is taking on only relatively unimportant cases while waiting for a ninth justice.
“It isn’t so. We haven’t selected them with a view to dodging challenging cases. We take them as they come to us,” she said.
But she did suggest that the court probably would not take up a major challenge to the death penalty any time soon. She joined Justice Stephen Breyer’s opinion a year ago that called for considering outlawing capital punishment.
“There are only two votes so far to have asked for it so I don’t think it’s likely, if there is such a challenge, that it would get four votes to grant cert,” she said, using court shorthand. It takes four justices to vote to hear a case, or grant cert.
Looking back over the term’s cases, Ginsburg said Scalia’s death essentially broke a tie in the affirmative action case, which ended with a 4-3 decision in favor of Texas’ admissions plan. Justice Elena Kagan did not take part because she earlier worked on the case when she served in the Justice Department.
Ginsburg wrote a short separate opinion in the abortion case to complement Breyer’s majority opinion. “I fully subscribed to everything Breyer said, but it was long and I wanted something pithy,” she said. “I wrote to say, ‘Don’t try this anymore.’ ”
Ginsburg was pleased with her majority opinion in yet another case from Texas in which the court upheld the state’s decision to count everyone, and not just eligible voters, in drawing its electoral districts. A ruling against the state would have diminished Hispanic political clout because, as Ginsburg noted, their population includes many who are not citizens. Also, she said, “Hispanics have a lot more children,” who also are ineligible to vote.
Her opinion said that using total population was permissible, but it stopped short of declaring that Texas and the rest of the states must count everyone. “I didn’t say it. I was writing for the court. … All things considered, you want to have as many people on board as you can,” she said, stressing the need to sometimes compromise to form or add to a majority. “So I had many first drafts written the way they’d be written if I were queen and they’ll be in my papers some day.”
She misses the colorful, outspoken Scalia, whom she described as charming. “The public got the wrong impression of him,” she said. Among the many pictures and mementos in her office is one of the two of them atop an elephant in India many years ago.
Without him, she said, the court is “a paler place.” But she thinks she and her colleagues did well to divide 4-4 in only four cases, including one that effectively killed Obama’s plan to help millions of immigrants who are living in the country illegally.
Another consequence of Scalia’s death was an increase in the number of dissenting opinions written by Justice Clarence Thomas, she said. Thomas wrote 18 dissents. Justice Sonia Sotomayor was next, with eight.
“Thomas always wrote a lot of dissents, but I think he was kind of making up for Scalia not being here. He wrote so many,” she said.