February 25, 2022
The George Washington Law Review’s Volume 90 Symposium’s second panel continued with a discussion of Justice Ginsburg’s jurisprudential approach and legacy. The panel featured presentations from Rachel Bayefsky, Associate Professor of Law at the University of Virginia School of Law; Paul Berman, Walter S. Cox Professor of Law at the George Washington University Law School; and Daphna Renan, Peter B. Munroe and Mary J. Munroe Professor of Law at Harvard Law School. The panel analyzed Justice Ginsburg’s perspective of the role of the judiciary, including a focus on the relationship between Justice Ginsburg’s jurisprudence and legal pluralism, and Justice Ginsburg’s view on the proper approach to statutory interpretation.
Professor Bayefsky began the panel by characterizing Justice Ginsburg’s novel jurisprudential approach as advancing “order without formalism.” She noted that Justice Ginsburg’s approach to deciding cases represented “an alternative vision,” guided not by overarching jurisprudential theories, but “by virtues like the administration of justice, judicial caution, and a willingness to be flexible when required.” In her discussion, Professor Bayefsky identified several key themes of Justice Ginsburg’s judicial approach. First, she discussed how Justice Ginsburg’s commitment to the orderly administration of justice “prized clarity of judicial procedures,” including on issues involving personal jurisdiction and subject matter jurisdiction. Second, Professor Bayefsky described Justice Ginsburg’s commitment to “epistemic humility,” a recognition of the hazards of judicial extension to areas not suitable for judicial activity. Third, she noted Justice Ginsburg’s commitment to institutional humility through her recognition that adherence to a particular theory of statutory interpretation, even where a case warrants a different approach, can result in a “more muscular judicial action.” Finally, Professor Bayefsky examined Justice Ginsburg’s view that stare decisis, while a critical jurisprudential principle, should not prevent courts from acknowledging errors that may only reveal their magnitude over time.
Continuing the theme of Justice Ginsburg’s commitments to order without formalism and judicial humility, Professor Berman discussed the concept of legal pluralism. Professor Berman described legal pluralism as a way of understanding the interactions of traditional legal systems with quasi-legal systems such as stock exchange standards and computer codes. He explained that legal pluralism describes how different systems of law and norms interact, and how this process can inform judges. He contended that, even without explicitly acknowledging the concept of legal pluralism, Justice Ginsburg’s jurisprudential approach to civil procedure embodied the tenets of legal pluralism in surprising ways. Specifically, Professor Berman argued that Justice Ginsburg understood that the role of a judge is not to favor one body of law while negating alternatives, such as deferring to federal law in derogation of state law. Instead, Professor Berman noted, Justice Ginsburg followed a “juris-generative approach” designed to “foster a dialogue of different voices, and to give deference to other people’s conceptions of how the world should work.” Professor Berman identified several specific instances of Justice Ginsburg’s approach that illuminate the Justice’s surprising deference to state law and principles of federalism.
Professor Daphna Renan rounded out the panel by discussing how Justice Ginsburg’s opinions evinced her egalitarian approach to statutory interpretation. Professor Renan noted that Justice Ginsburg was aware that rigid interpretations of statutory text tend to undermine the effectiveness of statutes enacted to advance social change. In contrasting Justice Ginsburg’s approach to the increasingly prevalent “high textualist” approach, Professor Renan explained how Justice Ginsburg understood that respect for statutes that achieve social change can only be achieved by recognizing the social and political context surrounding Congress when it enacts them. For example, Professor Renan explained that Justice Ginsburg’s dissenting opinion in Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012), typified how Justice Ginsburg’s use of legislative history allowed her to understand “the context of policy disagreements that gave respect to the legislative bargain made” by Congress. By interpreting statutes in this manner, Professor Renan maintained that Justice Ginsburg was guided by an appreciation for the realities of the lawmaking process, effectuating the political will of the people, and fulfilling republican and democratic principles. Professor Renan concluded by emphasizing that Justice Ginsburg’s “ability to never lose sight of the human impact of the law” defines her jurisprudence.
This summary was authored by Matthew Gorski, Associate.