Ruth Marcus: Supreme Court justices don't play nice in recess

Maybe it's good that the justices have another month off before the Supreme Court starts again. The wounds from last term don't seem fully healed.

There was Justice Antonin Scalia, speaking in Montana last week, none too subtly chastising his colleagues' rulings on gay rights. "It's not up to the courts to invent new minorities that get special protections," Scalia said, according to The Associated Press.

Asked about the most wrenching decision in his time on the bench, Scalia replied, "Well, is Obamacare too recent?" Which suggests that scars linger from the 2012 term, too.

But we have become accustomed to Scalia's verbal pugilism. More surprising have been the latest volleys from the liberal justice he has described as his "best buddy" on the court: Ruth Bader Ginsburg.

In the hermetic world the justices inhabit, Ginsburg has launched a virtual press tour this summer, granting interviews to Reuters, the AP, USA Today, Bloomberg and The New York Times, with two can't-miss messages.


The first is aimed at liberals: She's not retiring anytime soon, thanks for asking. No matter how much you want to ensure that a Democratic president gets to pick the next nominee.

The suggestion that she retire was delivered in its most unvarnished form by Harvard Law School professor Randall Kennedy, who wrote in The New Republic in 2011 that Ginsburg, 80, and fellow Justice Stephen Breyer, 75, ought to step down, pronto. "Their estimable records will be besmirched ... if they stay on the bench too long," Kennedy warned.

Ginsburg, speaking to Reuters' Joan Biskupic in July, predicted more such chatter would "start up again" — and took pains to squelch retirement fever. She told USA Today: "As long as I can do the job full-steam, I would like to stay here."

Speaking to The New York Times' Adam Liptak last week, Ginsburg dismissed any suggestion that her timing would be dictated by the election calendar. "There will be a president after this one, and I'm hopeful that that president will be a fine president," she said.

Hmmm, notice the absence of gendered pronouns.

No justice is going to admit to basing retirement plans on the president in power; Liptak wrote that Ginsburg "said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning."

But denials notwithstanding, no justice can avoid thinking about it. Legacy doesn't matter if it is at risk of being dismantled. Linda Greenhouse, in "Becoming Justice Blackmun," describes how, after Ginsburg's arrival, Harry Blackmun decided it was time to go: "Roe was safe, and a sympathetic president was in the White House."

But Ginsburg has another predecessor in mind. "I wonder if Sandra regrets stepping down when she did," she mused to Reuters, referring to Sandra Day O'Connor. One suspects Ginsburg has some inkling of the answer, and that it shapes her own. Giving up water-skiing, as Ginsburg has, is one thing. Relinquishing "the best job in the world for a lawyer" is quite another.


Ginsburg's second message is even sharper: an unsparing critique of her conservative colleagues.

On the court's Citizens United ruling loosening campaign finance restrictions, she told Bloomberg: "People are appalled abroad. It's a question I get asked all the time: Why should elections be determined by how much a candidate can spend and why should candidates spend most of their time these days raising the funds so that they will prevail in the next election?"

To the AP, Ginsburg all but called her fellow opera buff a hypocrite. "Scalia, who really takes after the court for taking over legislative turf in same-sex marriage, doesn't make a whimper in voting rights, which passed 98 to nothing in the Senate and 330 to something in the House," she said. "I didn't put that to him, but surely he's going to be asked the question, 'How do you distinguish the two?'"

To the Times, Ginsburg repeated her earlier charge that the supposedly conservative majority was in fact an activist one. "If it's measured in terms of readiness to overturn legislation, this is one of the most activist courts in history," she said. "Stunning in terms of activism," she said of the court's decision striking down a key provision of the Voting Rights Act.

Justices tend to reserve their disagreements to the courtroom and the pages of their opinions and dissents. This is gloves-off language from a justice who still favors a pair of dainty lace ones.

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