How Ruth Bader Ginsburg is trying to check the conservative majority

SCOTUS Justice Ruth Bader Ginsburg. Courtesy Bill Hennessy via CNN.

Justice Ruth Bader Ginsburg is in the liberal minority on the Supreme Court but has a way of steering the debate on a case.

Ginsburg spoke to CNN in a rare interview in her chambers this week. The 86-year-old four-time cancer survivor has resumed an active role in oral arguments and is often the first of the nine justices to pose a question. She regularly asks whether the Supreme Court should even decide the legal issue before it.

By framing the debate in this way, Ginsburg could limit the five conservative justices from setting new precedent over the dissent of the court's four liberals.

Ginsburg's approach goes back to her time in law school -- but her expertise and emphasis offers liberals a path forward when the balance of power on the court is now solidly conservative. Ginsburg has taken up the cause in multiple recent disputes regarding the 2nd Amendment, criminal sentencing and tax law.

In an interview late Tuesday, Ginsburg talked about the rules for getting through the courthouse doors. She would not discuss specifics of any pending case and sidestepped questions about strategy or the ideological stakes on this divided court.

She said that procedural concerns can stop judges from intervening prematurely but noted that procedural safeguards can also ensure that worthy litigants are not kept out of the courthouse.

"It's just instinctive to me," she said. "Procedure is supposed to serve the people that law exists to serve."

Last year at this time, Ginsburg was recovering from lung cancer surgery and missed several weeks at the court. She finished out the term in June. Soon after, she discovered a cancerous tumor on her pancreas, which was treated in August, and she resumed her active schedule.

Sounding energized and speaking animatedly, she told CNN on Tuesday that her year was off to a fine start: "I'm cancer free. That's good."

The justices are currently negotiating in their chambers how far to go in cases that have been argued and beginning next week will start a new round of oral arguments. Some of the fresh dilemmas will similarly raise procedural matters of who can sue and when, as well as how far the justices should run with a narrow lower court ruling.

Along with issues of immigration, reproduction rights and LGBTQ protections, the justices plan to review three disputes over President Donald Trump's tax returns and other financial records.

Ginsburg on Tuesday did not discuss specifics of any case before the justices and sidestepped questions about any new interest in procedure arising from the ideological stakes on the divided court. The subject, she said, has intrigued her since her law school days.

As a fire crackled in her chambers, Ginsburg, dressed in red slacks and a tan jacket, elaborated on her fascination. She read from a sheet of paper she brought to the interview containing a "favorite quote: from the 1943 case of McNabb v. US.

"The history of liberty," wrote Justice Felix Frankfurter, "has largely been the history of observance of procedural safeguards."

A return to her past

The nitty-gritty of procedure that routinely concerns her is not what has brought Ginsburg public prominence in recent years. The women's rights advocate who inspired the "Notorious RBG" meme and carries an "I Dissent" tote bag typically speaks about equality in the law and her life experiences (down to her exercise regime) before enthusiastic campus crowds.

But civil procedure was her field in her early years as a lawyer. She said her interest was whetted by a first-year class at Harvard taught by the late eminent law professor Benjamin Kaplan. Many of her fellow students did not care for this field, she said.

"Tort, contract, property -- there was some familiarity with it," she said. "Procedure was this strange area."

But she was excited by civil procedure and made a point of volunteering in class as often as she could.

"Kaplan was a master of the Socratic method," she recounted. "He never used it to wound. He used it to make the class engaging."

Ginsburg transferred to Columbia University to be with her husband, Martin, who had been a student at Harvard Law, graduated a year earlier and gotten a job in New York City. But she retained her interest in civil procedure. After her graduation in 1959, she began teaching the subject and traveled to Sweden to study its civil procedures.

"Reading and observing another system made me understand my own system so much better," she said, vividly recalling her research in Sweden a half century ago.

Ginsburg's iconic status today has only been enhanced by her resilience in surviving four cancer ordeals since 1999. In the current session, she appears back with renewed vigor, especially on procedural questions -- an emphasis that is important for the court's left at the moment.

Last month, for instance, Paul Clement, the lawyer at the lectern challenging a New York City restriction on transporting firearms, was just two minutes into his argument when Ginsburg brushed past his rendition of 2nd Amendment history and focused on what mattered to her.

"The city has now been blocked by a state law," Ginsburg said. "The state says: City, thou shalt not enforce the regulations. So what's left of this case?"

Based on their records, the four liberals would likely protest any decision that favors the position voiced by Clement that "a transport ban is and always was unconstitutional" under the 2nd Amendment.

The early focus for Ginsburg was whether the dispute was moot and, thus, not fit for any high court resolution, let alone an expansion of the court's 2008 landmark decision that declared an individual right to possess guns at home. She said in the December hearing that, essentially, the rifle association had already won.

"The (challengers) have gotten all the relief that they sought," she argued. "They can carry a gun to a second home. They can carry it to a fire -- to a practice range out of state."

The challengers had wanted the still-pending case to lead to a rejection of transport rules nationally, not only in New York City. The justices have not ruled on the case.

Liberals hoping to stop conservatives from reversing precedent

Attention to the procedural elements of a case -- which is shared to varying degrees by other justices -- parallels a sharper focus on preserving precedent, especially among Supreme Court liberals.

With the 2018 retirement of centrist conservative Justice Anthony Kennedy, succeeded by Brett Kavanaugh, the high court is positioned for more conservative rulings and reversal of precedents from earlier eras. Over the past year, liberal justices have emphasized at arguments and in opinions the value of past milestones and stability in the law.

It has not been a winning battle, as the liberals made clear last term when they protested reversal of two decades-old precedents.

In May when the five-justice conservative bloc reversed a 1979 precedent, Nevada v. Hall, centered on when states can be sued in the courts of other states, Justice Stephen Breyer wrote: "The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today's decision can only cause one to wonder which cases the Court will overrule next."

Then in June, when the same five justices reversed a 1985 precedent on property regulation, Justice Elena Kagan wrote in dissent, "Well, that didn't take long. Now one may wonder yet again."

Yet, beyond ideological battle lines, the broader debate can help illuminate esoteric concepts and enhance public understanding of how America's highest court operates. Procedural rules are intended to ensure that courts run fairly, consistently and efficiently.

Those issues usually preoccupy the justices and few others. Attention naturally goes to whether some challenged practice is constitutional, rather than, for example, whether the challengers have standing to sue or sufficiently raised their claims in lower courts before petitioning the justices for review.

But gateway questions have consequences and especially concern Ginsburg.

"The Kansas Supreme Court didn't reach that question," she told lawyer Sarah Schrup, representing a convicted murderer challenging Kansas' elimination of the insanity defense, "so you are asking us to decide it as a matter of first impression."

Ginsburg's question came as Schrup, who had stressed that Kansas law violates 14th Amendment guarantees of due process, pivoted to her claim that it also breaches an element of the 8th Amendment protection against cruel and unusual punishment.

"We believe that this issue is presented," Schrup told Ginsburg, and added, "if you want supplemental briefing, we'll provide it."

The "Bob Richards rule"

In a December dispute over the legal principles covering consolidated corporate tax refunds in bankruptcies, Ginsburg was again first into the mix.

In dispute was a common-law principle known as the "Bob Richards rule," named from a longstanding lower court case that held that any tax refund from a subsidiary's losses belongs to that subsidiary, rather than to the corporate entity that filed the consolidated tax return for multiple affiliates.

Lawyer Mitchell Reich, representing a bankruptcy trustee for United Western Bancorp, argued that judges hearing disputes over such tax refunds should instead apply the relevant state law to the case. He said the Federal Deposit Insurance Corp. had advocated the Bob Richards rule when the case was in lower courts and added, "But, in this Court, the government has abandoned any defense of the Bob Richards rule ... Instead, the government advocates a brand-new rule."

Wait, Ginsburg said, how can the justices test the validity of a rule that the federal government has now abandoned?

"Why should we take up Bob Richards at all in this case? Because both sides agree that that's not what should be dispositive," she asked, adding: "The question presented, it seems, has now vanished from the case."

During arguments, justices -- on both the left and right -- became unusually animated in their discussion of how to review a rule that could be irrelevant in the matter at hand and possibly future disputes.

"I'm getting wheezy with this back and forth," Chief Justice John Roberts said as justices pressed US assistant solicitor general Michael Huston to clarify the government's position.

In an earlier set of arguments that captured more public attention, Ginsburg was the first justice into the Q-and-A in a case testing the sentencing procedures for Lee Boyd Malvo, one of two "Beltway snipers" convicted for a 2002 series of murders in the Washington, DC, area.

At issue whether Malvo, who was 17 at the time of the murder spree that left 10 people dead, should be re-sentenced based on a 2012 Supreme Court decision, Miller v. Alabama, that invalidated mandatory life sentences without parole for juvenile offenders. A subsequent case, in 2016, declared that the Miller decision should be retroactively applied to juvenile defendants who were already convicted and still appealing their cases.

In the October hearing, Virginia state officials contended their system is actually discretionary, so Malvo would not be covered by the new cases. Ginsburg's questions suggested she believed otherwise and that Malvo would be entitled to a new sentencing.

As Virginia solicitor general Toby Heytens insisted that Miller v. Alabama would not apply to Malvo, whose "victims were already required to endure one full trial and sentencing hearing more than a decade ago. ... The Court should not lightly ask them to go through another, particularly given that the original sentencing fully complied with then controlling constitutional restrictions."

"Mr. Heytens, could we back up a little," Ginsburg interjected, "and explain to me why these decisions are not mandatory? I mean, the jury had only two choices, death or life without parole. And nobody seemed to have appreciated at the time of Malvo's convictions that there was any discretion."

Heytens acknowledged that the jury was given limited options but said that under Virginia law, the trial judge had the authority to suspend the jury's sentence, which would ensure no legally mandatory prison term.

"Has any Virginia judge ever reduced a juvenile life without parole to life with parole or a term of years?" Ginsburg asked.

Heytens said he was unaware of a judge ever reducing a life-without-parole sentence for a juvenile convicted of capital murder.

Assistant US Solicitor General Eric Feigin, representing the federal government during the hour-long arguments, sided in large part with Virginia, for limited effect of the Miller ruling.

Ginsburg interjected, not with a procedural question, but rather with a query that liberal justices have increasingly posed to Department of Justice lawyers representing the Trump administration, as it has reversed course on Obama era legal positions.

"As I understood it," Ginsburg asked, "the (federal) government originally argued that juveniles sentenced to life without parole must be resentenced after (the 2012 and 2016 decisions), whether life without parole is mandatory or imposed as a matter of discretion. That was the position that the government took, and most of the lower courts are in accord with it. What led the -- to the SG's change in position?"

Feigin acknowledged some variation in the Department of Justice position but said it is now "consistent" in the stance that the high court's decision forbidding life without parole for juveniles has limited retroactivity.

The late Justice Antonin Scalia, who served with Ginsburg on both the high court and US Court of Appeals for the District of Columbia Circuit, often spoke of her trenchant approach to oral arguments, specifically describing her in one interview as "a tigress on civil procedure."

"She has done more to shape the law in this field than any other justice on this court," Scalia said in a 2013 interview in his chambers. "She will take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone."

On Tuesday, Ginsburg laughed at the remarks of her late friend and colleague, who may have respected her but often voted against her.

Rejoined Ginsburg, "I wish he had listened to me more often."

By Joan Biskupic, CNN legal analyst & Supreme Court biographer via The-CNN-Wire™ & © 2020 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

The Gayly. 1/10/2020 @ 12:53 p.m. CST.