On September 23 the US non-profit Marshall Project, which analyzes US legal and judicial issues, published its analysis of the late Ruth Bader Ginsburg’s judicial record. It was politely critical. It examined many of her written judgements, checking whether she agreed with the majority of the court or dissented from the majority’s opinion. It concluded that she was a leader in gender equity and reproductive rights but “Her record on issues of criminal justice and race is less examined— and less consistent.”
This criticism is unfair. A judge’s job is to do her job, not to decide consistent with any particular ideology. The job requires an understanding of the importance of precedent, even precedent the judge doesn’t particularly like. The law has to be stable and predictable as well as just, which requires a balancing. Also, judges are part of a collegial bench. Mechanically counting and scoring the written judgements doesn’t accurately reflect the inner workings of apex courts. Whose signature was on which judgement provides a clue, but is not determinative of that judge’s contribution to the US Supreme Court (or Canada’s).
Several years ago I served as a Canadian Bar Association representative on a Bench and Bar Committee to reform the procedures of the Supreme Court of Canada. During that time we met with the judges. They explained to us how they actually worked as a team. Yesterday I researched and found that this is also how the US Supreme Court works today.
With only nine judges and typically around 80 or more judgements to write annually, they have to decide who writes what. They share the work, based on factors such as the legal specialties of particular judges, their current workload, their physical health, etc. The work-sharing decisions must consider who is already busy and late on completing other overdue judgements. Judge X may be perfectly happy to unload the responsibility of writing a judgement to judge Y if she knows from their meetings that judge Y will write a judgement that judge X considers acceptable. Draft judgements are also circulated for comment by the other judges. They then try to compromise to get a unanimous judgement.
Usually, controversial cases permit more than one reasonable result. Also, when a court thinks there is more than one way to explain the law leading to a result they will ask a judge to write a separate concurring opinion. This opinion may agree about who wins, but for different reasons. Or, a judge may disagree with the result decided by the majority, and may write a dissenting opinion, either alone or with one or more other judges. In short, judges decide, collectively and individually, whether they want to send out a single message or more than one message, what those messages will be, and to whose workload these messages will be added.
Being a perpetual lone dissenter is not a good role because that judge will not influence the course of the law without being part of the majority. Hence the need sometimes to accept judgements with which one somewhat disagrees, but not strongly enough to write a dissent. Much time is required to write a coherent dissenting judgement. In that time a judge could be writing other judgements.
Judge Ginsburg herself was critical of Roe versus Wade, not because she thought the judgement was wrong but because she thought it was too far ahead of its time, and thus too controversial. All judges are aware that if their judgements are either too far ahead of public opinion or too far behind it their judgements won’t be respected. They need that respect for people to obey the law and to preserve the dignity and reputation of the court. Different judges have different theories about where public opinion lies, and also, the extent to which they should lead it or follow it.
The true extent of Justice Ginsburg’s contribution to the US Supreme Court – just like every other judge of that court – is essentially unknowable. Some idea of that can come from reading what they wrote, but that is at best a rough approximation.