Column: How to build consensus in SC

The Judges

RBG in the house. Former President of the Supreme Court of Brazil Ellen Gracie Northfleet, Judge Rosemary Barkett of the Iran-US Claims Tribunal, and Justice of the US Supreme Court Ruth Bader Ginsburg.

Column No. 450, published on July 11, 2017. (What a thrill to meet RBG.)

On the eve of the World Justice Forum at The Hague, I asked the guest of honor, the eminent Ruth Bader Ginsburg, associate justice of the US Supreme Court, about how to build consensus in collegial decision-making institutions. I had the Philippine Supreme Court in mind: One majority decision and 14 separate opinions in a landmark case involving the exercise of extraordinary powers did not seem to me to be a sign of strength, but rather of weakness in the shaping of consensus. I did not say any of this — only that in my impression, building majority decisions could be problematic. She replied, initially, by asking questions.

Do the justices lunch together? she first asked. (Later, she asked a related question: Do the justices have their own dining hall? I confessed that I did not know, but guessed that they did.) Do they live near each other? Most of her questions were in this personal vein. I can remember only two questions that were directly related to the work: How many serve on the Court? (This question may have been asked by Judge David Caron, who sat between us; I am no longer certain.) When I said 15, she asked: Do they work in panels?

I realize that the US Supreme Court is closely divided; many cases are decided by the narrowest of margins, a single vote. And yet Ginsburg has paid tribute often and publicly to the quality of the personal and working relationships at the Court. On Sunday night, she said it again: It is “the most collegial place” she knows. It is not only the justices who get along well (she, a liberal icon, and the late Antonin Scalia, the lion of the conservatives, were famously friends); the spirit of goodwill and collaboration also extended to the staff, she said, even to the “police officers” who serve at the Court.

She set much store by this spirit. Frequent lunches and living close together, she suggested, help create or confirm that sense of familiarity that can lead to true collegiality. Her mention of the police officers served to draw attention to a crucial, central fact: Those who work at the Court are happy to do so, and feel bound to the institution.

In a 2009 interview with C-Span, she spoke about her colleagues in the Court in this wise: “We care about this institution more than our individual egos and we are all devoted to keeping the Supreme Court in the place that it is, as a coequal third branch of government and I think a model for the world in the collegiality and independence of judges.”

None of this is to say that Ginsburg is a pushover.

I asked Ginsburg what moved her, in 2013, to read three of her dissenting opinions from the bench in one week. Reading from the bench is a rare practice in the US Supreme Court. As she did throughout the conversation, she first paused, seemed to collect her thoughts, asked, “You’re referring to the voting rights case?,” and then said: You read from the bench when in your view the majority ruling makes “an egregious error,” and you want to call attention to it.

That famous dissent in the Voting Rights Act case reads, in part: “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA. Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. In my judgment, the Court errs egregiously by overriding Congress’ decision.”

Contrary to what my own colleague, lawyer-columnist Oscar Franklin Tan, asserted in his last column, justices can criticize majority rulings and even each other without the criticism necessarily becoming, reductio ad absurdum, an argument for the impeachment of the criticized.

Justice Ginsburg offered a summing up that was, again, personal in spirit. The secret to consensus, she said, is “patience, and a sense of humor.” I understood this to mean that devotion to the Court and the role it plays in the government requires learning more about individual egos, the better to transcend them.

 

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