Justice Ginsburg Discusses the Court’s
“Most Watched” Cases;
Other Annual
Meeting Speakers Stress Themes of Liberty,
Equality, Federalism,
and Judicial Independence
At the Opening Session of the 2008 Annual Meeting in Washington on May 19, Supreme Court Justice Ruth Bader Ginsburg discussed some of the Court’s most significant cases this term. Outgoing ALI President Michael Traynor, E. Norman Veasey, former chief justice of Delaware, and Carolyn Dineen King, judge and former chief judge of the United States Court of Appeals for the Fifth Circuit, also addressed members at the 85th Annual Meeting.
The Term’s Most Noteworthy Cases
Justice Ginsburg applauded the Institute’s important role in clarifying and shaping the law, noting that the Supreme Court often turned to ALI Restatements, model laws, and other projects for enlightenment and that, like other jurists across the United States and abroad, she looked forward to continuing aid from ALI products. Noting that the Court next term could hear as many as 100 cases, she offered some comments on the Court’s term then nearing conclusion, concentrating on several cases in the “most watched” category.
Justice Ginsburg first addressed the then-pending case of District of Columbia v. Heller, 2008 WL 2520816 (U.S. June 26, 2008) (No. 07-290), concerning a security guard’s assertion that the District of Columbia’s ban on the private possession of handguns violated his Second Amendment right to keep and bear arms. Precedent on point was slim, she said, and the Court’s last decision involving an alleged right to keep and bear arms, United States v. Miller, 307 U.S. 174 (1939), was not free from ambiguity. (On June 26, the Court affirmed in a 5-4 decision, with Justice Ginsburg in the minority, the judgment of the Court of Appeals, holding that the District’s ban on handgun possession in the home violated the Second Amendment.) She next took up two cases of international importance, Boumediene v. Bush, 553 U.S. ___, 128 S. Ct. 2229 (2008), which was then still pending, and Medellín v. Texas, 552 U.S. ___, 128 S. Ct. 1346 (2008). Questions presented in Boumediene included whether Guantánamo detainees, including those who were not U.S. citizens, had a right to the writ of habeas corpus except in cases of rebellion or invasion, and, if so, whether Congress avoided an unconstitutional suspension by establishing an adequate substitute for habeas review. (On June 12, the Court, in a 5-4 decision with Justice Ginsburg in the majority, held that Guantánamo detainees had a right to habeas corpus, and that the procedures provided under the Detainee Treatment Act were not an adequate substitute.)
The issues in Medellín involved state enforcement of decisions of the International Court of Justice (ICJ). The Court, in a 6-3 decision, held, first, that President Bush could not unilaterally order the displacement of state law, and second, that Congressional action was needed to render the ICJ judgment binding in state courts. Justice Ginsburg and the other dissenters concluded that no further legislative action was needed to render the ICJ decision enforceable, because the United States had agreed to that court’s compulsory jurisdiction. Justice Ginsburg pointed out that both the majority and the dissenters cited the ALI’s Restatement Third, Foreign Relations Law of the United States.
In Baze v. Rees, 553 U.S. ___, 128 S. Ct. 1520 (2008), the Court by a 7-2 vote upheld the constitutionality of Kentucky’s lethal-injection protocol in implementing capital punishment. Kentucky, like all death-penalty jurisdictions except Nebraska, executes condemned inmates by injecting them with an anesthetic, a paralytic, and a drug that stops the heart. Justice Ginsburg said that a majority of the Court agreed that “[w]ithout a sufficient dose of the anesthetic … the procedure would cause excruciating pain and therefore violate the Eighth Amendment.” Justice Ginsburg, joined by Justice Souter, dissented, and would have remanded the case for consideration of whether Kentucky’s omission of easily administered tests for consciousness presented a readily avoidable risk of severe and unnecessary pain. She indicated that the Baze case may prove less than definitive because the record “contained no evidence on the one-drug alternative proposed by litigants in other challenges to lethal injection protocols.”
Justice Ginsburg related that on one day in February, the Court issued three opinions holding that federal legislation displaced state laws. The most significant of these was Riegel v. Medtronic, Inc., 552 U.S. ___, 128 S. Ct. 999 (2008), in which the Court held 8-1 that the FDA’s premarket approval of a medical device preempts common-law tort claims for injuries caused by the device. In her lone dissent, Justice Ginsburg indicated that the Court had “strayed far from Congress’ paramount purpose for regulating medical devices: consumer safety.” Her dissent, she added, “aimed to focus lawmakers’ attention on the Court’s deep cut into a domain historically occupied by state law.” She noted that next term the Court will take up a related issue of even larger consequence in Wyeth v. Levine (No. 06-1249), when it considers whether FDA approval of a drug label preempts state product-liability claims alleging deficiencies in the label.
Finally, Justice Ginsburg noted that the Court considered five election-law cases this term, one of which, Crawford v. Marion County Election Board, 553 U.S. ___, 128 S. Ct. 1610 (2008), rejected a facial challenge to an Indiana law requiring voters to present a government-issued photo ID. The Court, ruling 6-3, concluded that the challengers had not shown that the burdens imposed by the law outweighed the state’s interest in preventing voter fraud. Justice Ginsburg joined Justice Souter’s dissent, which maintained that the law was invalid because the state produced scant evidence of fraud that would “justify the time and expense exacted from voters lacking a compliant photo ID—a population composed dominantly of the poor, the elderly, and the physically infirm.” She said that Crawford, as a test case, was not ideally mounted: "The party lineup did not include even one flesh-and-blood plaintiff who could allege that he or she would suffer significant hardship because of the ID requirement.”
Liberty, Equality, and the Rule of Law
Noting that liberty and equality remain inaccessible to billions, including people in highly developed countries, Michael Traynor, in his May 20 Annual Dinner address, challenged the Institute to contribute to the public discourse and attendant formation of opinion and action by redefining the public conversation about equality and civil rights to encompass human rights. As the Institute continues its project on principles of world trade law, he said, it should stay attuned to the connections between trade and human rights.
Speaking personally and not on behalf of the Institute or in his official role as ALI President, Mr. Traynor also spoke about the challenge that terrorism presents to liberty and security. Stating that he could not be silent as a citizen in the face of the current government’s “oppressive, relentless, and lawless attack … on the rule of law and our liberty,” he gave several examples of how the government, in his view, had compromised the rule of law. “It is our responsibility as citizens and lawyers,” he opined, “to safeguard our civil liberties, to demand the truth, and to stand up against the erosion of our liberties.” He called upon Institute lawyers to “take the lead in shaping the public discussion, forming the opinions, and stating the coherent principles that will lead to progress, to effective enforcement by the courts of existing laws and constitutional guarantees, and, when necessary, to enactment of new laws.” Mr. Traynor concluded that “[o]ur liberty and our values are our best defense, as well as our best weapon against terror. In strengthening them, we can also advance the cause of human rights and regain the respect and admiration of our fellow world citizens.” If the Institute “can help our country make such progress,” he said, “we will have earned the right to say in 2023, ‘Yes, we have matched the stature and vision of our founders and we can justly celebrate our centennial.’”
Is It Time for a Federalism Road Map?
Chief Justice E. Norman Veasey, representing the new class of 25-year members honored at the luncheon on May 20, began by asking what James Madison and the other “Founding Brothers” would have thought about “the irony of the twists and turns of federalism.” He then discussed how the respective powers of the national and state governments have played out in some notable cases and speculated about the future of federalization, particularly as it may affect corporations and investors. He predicted that Congress might continue to chip away, federalizing internal corporate affairs “depending on the scandal or perceived scandal or need ‘du jour.’”
E. Norman Veasey, former chief justice of
Delaware
Finally, noting that 16 years ago the Institute completed the 15-year debate that produced the Principles of Corporate Governance—“two nice volumes of work about how to improve state law in dealing with corporate-governance issues”—Chief Justice Veasey asked whether it was time for the ALI to undertake a policy analysis of federalism for the 21st century, and whether its focus should be on corporate law or should be more general. He concluded that it is “good to have the best brains at work on this question and not wait for the next scandal to stimulate Congress into a paroxysm of federalization.” Without a road map from the ALI or some other institution, he said, Congress would be forced to continue to grope around in the “Fog of Federalism.”
Judicial Independence and Ensuring the Rule of Law
At the luncheon on May 21, Judge Carolyn Dineen King, a member of the Institute’s Council, focused on the challenges to judicial independence posed by the increasing politicization of the appointment process for federal judges, especially at the intermediate federal appellate court level.
“Judicial independence and the principal end that it serves, ensuring the rule of law,” Judge King asserted, “are undermined by the high degree of political partisanship and ideology that currently characterizes the process by which the President nominates and the Senate confirms federal judges.” After describing how the appointment process came to be politicized, she examined the structure of lower-court decisionmaking and how, in combination with strong partisan or ideological views on the part of some judges, the fidelity of those decisions to the rule of law could be imperiled. She warned that if presidential candidates keep promising to appoint judges who will pursue their respective political and ideological agendas, then “judicial independence will continue to be severely threatened, and with it the rule of law in the United States.” She concluded that by refocusing on functioning as an impartial institution that rises above ideology, as contended by Chief Justice John G. Roberts, Jr., “courts can rebuild the institutional legitimacy that has been diminished by the politicization characterizing the judicial-appointment process for the last 30 years.”
A pamphlet containing the full text of the aforementioned addresses will be mailed to all Institute members in early fall. The addresses are also currently accessible at www.ali.org.