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Ginsburg Bemoans a ‘Divisive’ Term, but Vows to Stick Around

WASHINGTON — Every summer for six years now, Justice Ruth Bader Ginsburg has given a sort of State of the Supreme Court speech. She describes the major cases, marshals statistics, highlights lighter moments and draws broad conclusions.

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Adam Liptak
, New York Times

WASHINGTON — Every summer for six years now, Justice Ruth Bader Ginsburg has given a sort of State of the Supreme Court speech. She describes the major cases, marshals statistics, highlights lighter moments and draws broad conclusions.

Her main point in this summer’s talk, delivered last week at a Duke Law School summer program in Washington, was that the court had fallen woefully short in its quest for consensus. The term that ended in June had been, she said, “much more divisive than is usual.”

The number of closely divided rulings had skyrocketed, she said, making up more than a third of the court’s signed decisions in argued cases.

“I hope next term we will get back to our usual 15 percent sharp division,” she said, “rather than nearly 40 percent.”

Her remarks were nonetheless tinged with a measure of hope.

“The returns aren’t in,” she said. “This was one term. And it did have more than the usual high-profile cases.”

Ginsburg also made clear that she plans to stick around. She is 85 and Friday marked the 25th anniversary of her Senate confirmation. But she noted that Justice John Paul Stevens, who retired in 2010, was considerably older when he left the court.

“Justice Stevens stepped down when he was 90,” she said. “If I aspired to that same tenure, I’d have five more years to go.”

Ginsburg mentioned the retirement of Justice Anthony Kennedy only briefly and she said nothing about Judge Brett Kavanaugh, President Donald Trump’s choice to replace him. But there is little reason to think that Kavanaugh would reduce the polarization on the court if he is confirmed.

Kavanaugh is more conservative than Kennedy and he will almost certainly help move the court to the right. But Ginsburg seemed optimistic that the court could address two pieces of unfinished business from the last term to her satisfaction.

She said challenges to partisan gerrymandering, which the court ducked in a pair of decisions in June, could soon return to the court. In one, from Wisconsin, the court gave the challengers another chance to demonstrate that they had suffered the sort of direct injury that gave them standing to sue.

Ginsburg said that showing would be easy to make. “It should not be too hard to find willing plaintiffs in each of the gerrymandered districts,” she said.

She added that Justice Elena Kagan had provided the plaintiffs with a valuable tutorial by writing “a concurring opinion that reads as a blueprint for a complaint that could be successful.”

Ginsburg also predicted that the court would soon hear a sequel to the case of the Colorado baker who refused to create a wedding cake for a same-sex couple. The Supreme Court also ducked the central issue in that case in June, ruling for the baker on the grounds that he had not been treated fairly by a state civil rights commission.

“There will be another opportunity,” Ginsburg said, pointing to a similar case involving a florist in Washington state.

“That case doesn’t have anything like what was present in the Colorado case, that is, the suspicion that two of the commissioners on the Colorado commission were hostile to religion,” she said.

She said the term had some amusing moments, recalling an argument in October in which “Justice Kagan became nostalgic” about attending raucous parties at which she did not know the host.

“Can I say that long, long ago,” Kagan said in October, “marijuana was maybe present at those parties?”

Kagan distinguished herself in a second way, Ginsburg said, by asking the longest questions, averaging 93 words. Justice Samuel Alito achieved a different distinction, she said, by asking 44 questions in a single argument, in a case about Minnesota’s dress code for voting.

Justice Stephen Breyer spoke the most, uttering 22 percent of the words spoken by justices. Justice Sonia Sotomayor was second, at 17 percent, and Kennedy was next to last, at 5 percent.

As usual, Ginsburg said, Justice Clarence Thomas “asked no questions because he thinks the rest of us ask far too many.”

Deputy Attorney General Rod Rosenstein made an appearance before the court, Ginsburg recalled, arguing for the government in a sentencing case. He won, she said, and “can now claim a perfect 1-0 winning streak in cases argued before the court.”

Rosenstein has been the subject of reports that President Donald Trump would like to fire him. Neil S. Siegel, a law professor at Duke, asked Ginsburg whether she had been inclined to ask Rosenstein whether the argument was “the easiest day he’s had since the beginning of his tenure.”

She laughed and said nothing.

Siegel asked whether she held out hope that some of her colleagues might change their views over time. “Yes,” she said, “at least one or two.”

“As long as one lives,” she said, “one can learn.”

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