February 25, 2022
For the final panel in the George Washington Law Review Volume 90 Symposium, Professor Laura A. Dickinson, Oswald Symister Colclough Research Professor of Law of the George Washington Law School, moderated. Fitting with the subject of this year’s symposium, all of these panelists served as clerks for Justice Ginsburg at some point in their careers.
The first two panelists, Professor Abbe R. Gluck, Alfred M. Rankin Professor of Law of Yale Law School and Founding Faculty Director at the Solomon Center for Health Law and Policy, and Professor Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law of Stanford Law School, co-authored a paper for the symposium. Their paper focused on modern “unorthodox rulemaking,” which Professor Gluck described as a look at what happens when old doctrine meets modern challenges, and how Justice Ginsburg met these pressures during her tenure on the Supreme Court. They specifically focused on her opinions in civil procedure and administrative law. Professor Gluck began with Justice Ginsburg’s civil procedure opinions. Professor Gluck discussed her work in multidistrict litigation, which she described as an unorthodox workaround to modern class action suits, and a field owing some of its development to Justice Ginsburg’s opinion in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). Professor Gluck identified this opinion as a great example of the tension between orthodoxy and unorthodoxy in Justice Ginsburg’s opinions. Amchem involved a massive national asbestos settlement. Justice Ginsburg, writing for the majority, held that such a settlement did not fit within Rule 23 of the Federal Rules of Civil Procedure, which governs class-action litigation. Justice Ginsburg recognized that judicial invention would not have been appropriate to uphold the settlement in a case such as Amchem, but rather that legislation would be necessary. Though her proposed solution of “subclassing” did not come to fruition, attorneys found other Rule 23 alternatives to bring aggregate cases, such as multidistrict litigation.
Professor Gluck then went on to discuss Justice Ginsburg’s work in the field of personal jurisdiction and how that fit within the unorthodox lawmaking framework. Professor Gluck identified a key modern issue with personal jurisdiction: how to evolve existing doctrine to deal with the realities of the national economy. Professor Gluck began with Justice Ginsburg’s powerful dissent in J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, where she proposed imposing a new rule for place of injury. Even though her opinion did not receive support from a majority of the Court, it helped frame future debate about personal jurisdiction in later cases. Professor Gluck then focused on Justice Ginsburg’s opinion in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915 (2011), where she attempted to clarify the “doing business” test of general jurisdiction, by allowing a company to be sued only where they are “at home.” Finally, Professor Gluck recalled a conversation with Justice Ginsburg at the time of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), and reflected on her frustration in the lack of understanding in the difference between general and specific jurisdiction, as evidenced by the sliding scale test the lower court had tried to develop. Professor Gluck fondly recounted that Justice Ginsburg dominated in civil procedure and personal jurisdiction, specifically.
Professor O’Connell next spoke about the administrative law portion of their paper on unorthodox rulemaking, stating that Justice Ginsburg’s opinions demonstrated a balance between deference and limits. Interestingly, Justice Ginsburg served on the D.C. Circuit Court and wrote an opinion in Chevron which the Supreme Court later overturned. Justice Ginsburg remained skeptical about Chevron in her Supreme Court nomination hearings, citing separation of powers concerns, but Professor O’Connell argued that Justice Ginsburg came to appreciate the holding as the Chevron doctrine evolved. Professor O’Connell explained that, while Justice Ginsburg’s acceptance of Chevron could be said to demonstrate unorthodox lawmaking, her unorthodoxy in administrative law was limited. As an example, she cites to Justice Ginsburg’s dissent in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020). Though Justice Ginsburg’s opinion focused to some degree on reproductive rights issues involved in that case, she also took issue with upholding agency deference because of a large number of agencies involved, while deferring to a single agency would have been orthodox under the Chevron framework.
Professor O’Connell also identified that Justice Ginsburg was concerned with balancing the Chevron doctrine with plaintiffs’ access to the judicial system. Professor O’Connell described Justice Ginsburg as striving to expand judicial review of agency actions, even if courts may ultimately defer to the agency anyways, to allow plaintiffs to have their day in court. Professor O’Connell and Professor Gluck both highlighted Justice Ginsburg’s emphasis on improving access to the judicial system in her administrative law and civil procedure opinions.
Professor Amanda Tyler, Shannon C. Turner Professor of Law of the University of California Berkeley School of Law, was the next panelist to present. Professor Tyler began by discussing the great privilege of clerking for Justice Ginsburg, especially as someone she had long looked up to and admired. Professor Tyler conducted a survey of Justice Ginsburg’s procedure and federal jurisdiction cases and concluded that she had a high-level knowledge of the subject matter, a practical approach which emphasized real world context, strong lawyerly analysis, judicial fairness and efficiency, and a commitment to improving the accessibility of the legal system and promoting government accountability. Professor Tyler cited Justice Ginsburg’s McIntyre dissent as an example of many of these characteristics.
Professor Tyler also emphasized Justice Ginsburg’s judicial humility, her ability to acknowledge when the court’s role was to refrain from acting, and her emphasis on balance in her opinions. She explained that Justice Ginsburg did not decide cases in a vacuum but always thought about a potential companion case. She also said that Justice Ginsburg cared deeply about continuity and how different doctrines coexist, especially in cases involving jurisdictional issues. Professor Tyler recalled that Justice Ginsburg would often write separately to highlight the narrowness of an opinion, issues left unresolved, and issues that should be revisited by an institution other than the Court. She concluded by discussing Justice Ginsburg’s focus on access to the judicial system and government accountability and echoed Justice Breyer’s remark that Justice Ginsburg was a “rock of righteousness.”
The final panelist to speak was Professor Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law of the University of Chicago Law School. He discussed his paper focusing on Justice Ginsburg’s majority opinion in Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017). In Morales-Santana, a noncitizen challenged his removal proceeding on equal protection grounds because a different period of U.S. citizenship was required for a parent to pass on citizenship to their child depending on the parent’s gender. In declaring this gap unconstitutional, the Justice Ginsburg leveled the required years of citizenship to ten years regardless of the parents’ gender; previously, only one year had been required when a mother sought to pass citizenship to her child. Professor Huq analyzed Justice Ginsburg’s decision to “level down” in Morales-Santana through several lenses, each of which he argues advances the overarching goal of equality, and highlighted two in his Symposium remarks.
Professor Huq discussed an argument for leveling down stemming from an assumption that equal protection doctrine should focus on evaluating people based on their merit without regard to membership in a particular group. He suggested that “leveling up”—that is, extending the benefit to both the burdened and benefitted groups in an equal protection case—could also make sense in this context, but argued that it could tend to provide unwarranted special benefits to one group and place greater demand on public resources. Thus, leveling down better serves goals of evaluating people based on merit and increasing equality. Professor Huq then moved to a second argument to demonstrate how leveling down advances equality. Where elites maintain their elite status through resource hoarding, leveling down is the equitable choice because it removes special privileges. Professor Huq also discussed Justice Ginsburg’s attention to the allocation of authority between institutions, illustrated by her Morales-Santana opinion. He identified her attention to the proper institutional role of the Court and its ability to influence Congress to act by leveling down, the approach likely to cause the least backlash. Professor Gluck also praised Justice Ginsburg for her ability to identify the best mechanism through which law should change He concluded by celebrating a great opportunity to analysis Justice Ginsburg’s work, especially in areas that may not be as frequently emphasized.
This summary was authored by Annie Cowman, Associate.