Justice Ruth Bader Ginsburg warned on Friday that the court is likely to be sharply divided in the coming weeks over some of the “most watched” cases that remain – perhaps even giving a clue to how justices will rule on the fight over the 2020 census.
Her comments to the Second Circuit Judicial Conference in New York underscore the deep schisms on the newly solidified conservative court now that Justice Anthony Kennedy has been replaced by the younger and more conservative Justice Brett Kavanaugh. She made clear that she thinks Kennedy’s retirement will impact not only the cases this term but also those for “many terms ahead.”
Ginsburg did not reveal the vote count of some of the remaining opinions, but hinted there might be close divisions in cases such as a dispute concerning a citizenship question on the 2020 census, as well as the issue of extreme partisan gerrymandering.
In particular, Ginsburg compared the census case to last year’s fight over the travel ban, where the court’s 5-4 conservative majority sided with the executive branch.
She called the census dispute a “case of huge importance,” noting that some have compared it to the travel ban case.
“Speculators about the outcome note that last year, in Trump v. Hawaii, the court upheld the so-called ‘travel ban,’ in an opinion granting great deference to the executive,” Ginsburg said.
She said the challengers in the case believe that ruling in the government’s favor “would stretch deference beyond the breaking point.”
In another case, concerning the issue of extreme partisan gerrymandering, court watchers are waiting to see if the conservative majority is prepared to rule that such cases are better handled by the political branches than the courts.
Nodding to the dispute, Ginsburg said, “However one comes out on the legal issues, partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa.”
The speech was closed to the press, but the court released a copy of Ginsburg’s remarks.
The 86-year-old justice noted that, so far, there have been relatively few cases that broke down along familiar ideological lines but that could soon change.
“Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold,” she said.
Ginsburg lamented the loss of Kennedy on the bench.
“The event of greatest consequence of the current term, and perhaps for many terms ahead,” Ginsburg said, is that Kennedy “announced his retirement.”
She also praised his replacement, Kavanaugh, for hiring an “all-female law clerk crew.”
“Thanks to his selections, the court has this term, for the first time ever, more women than men serving as law clerks,” she said.
She noted that Justice Neil Gorsuch had “cheerfully relinquished” to Kavanaugh the tasks traditionally assigned to the court’s newest member. She said Kavanaugh now answers the telephone the “rare times” it rings during conference and handles the “most thankless of all chores, sitting on the court’s cafeteria committee.”
Ginsburg did not mention her bout with cancer earlier in the term, when she had nodules removed from her lung. While she recuperated, she missed oral arguments for the first time in her career on the bench.