Wednesday, December 5, 2012

Getting Justice Ginsburg's Goat

An Examination of Her Dissenting Opinions

By Chelsy Jones
Chelsy Jones, a third-year student at Albany Law School, is a Senior Editor of the Center.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science. While in law school, she has served as a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and as a Research Assistant for the Albany Law School Clinic and Justice Center.  Currently, Chelsy works year round as a legal intern at the Schenectady County District Attorney's Office. Chelsy also is the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
Chelsy's paper was originally written for the Judicial Process Seminar last year.

In his Nature of the Judicial Process lectures, Benjamin Cardozo once spoke of the “inarticulate” and “unavowed” views and positions that underlie all judges’ decisions.  He was speaking of judicial realism, a term most judges today retract from and even flat out deny, claiming impartiality to the point of judicial lobotomy.  

Realistically however, it truly is impossible for a judge, or any human for that matter, not to bring their personal views and positions into the equation when making a decision.  Cardozo therefore spoke of the “stream of tendencies” or patterns that naturally emerge in a judge’s voting record.  This paper will explore Supreme Court Justice Ruth Bader Ginsburg’s “stream of tendencies” in an effort to unearth what truly vexes her and reveal her “inarticulate” and “unavowed” views.

Dissents, in particular, best reveal a judge's position on certain issues.  When a judge dissents, she is not only disagreeing with her colleagues in the majority, but also taking the time and effort to explain her reasons for doing so.  Thus, to illustrate the types of issues Justice Ginsburg feels strongly about, or that “get her goat,” this paper will examine her dissenting opinions authored during the 2010 and 2011 terms.*

* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.