Can we get another Scalia
"We cannot give our enemies a greater gift"
The US Supreme Court plays a key role, and Ruth Bader Ginsburg is its oldest member. She criticizes the US government for restricting citizens' freedom in the fight against terrorism.
Judge Ginsburg, you and your colleague Scalia are probably the only judges about whom an opera was written during their lifetime. In “Scalia / Ginsburg” the two singers present their opposing views with great passion. Do you also have such emotional discussions in the Supreme Court?
I previously worked at two law schools and then for thirteen years at a federal appeals court. But nowhere have I seen such mutual respect, even affection, as here at the Supreme Court. I want to give you an example. In the Bush v Gore case [on the admissibility of recounts in the 2000 presidential election] we were completely divided. The decision was made just under five to four. Although we disagreed, we were almost normal with each other a week later. This is practically always the case with us. “Get over it”, one of my colleagues would say here.
But some of the reasons for judgments and minority opinions are conspicuous by very harsh words.
Some of my colleagues actually have quite a sharp-tongued writing style. Not me. Some say my justifications are boring. But I value our differences and understand that you can disagree - for example on the subject of same-sex marriage.
The question of whether or not to allow gay marriage sparked heated debates in the court this year. You just won. How did the losing judges react?
The evening after our decision was published, Judge Kennedy, Judge Scalia, who voted against gay marriage, and I went to a party together. As always, we got along very well. At the end of the evening Scalia suddenly took the stage - and sang Bob Dylan's "The times they are a-changin '". We had a great evening.
In the United States, it's normal for a prosecutor to suddenly become a defense attorney, or a defense attorney to become a professor or a judge. Aren't they very delicate changes?
We don't have a traditional career, as is common in Europe. Whoever is called to the judgment seat with us usually goes around fifty. We judges were all lawyers in the past. But my work today is not that different from what I did when I was a lawyer or professor. Ultimately, we are all active in the art of persuasion. As judges, we are now elected for life, so we trust ourselves to judge with an open mind.
In Switzerland we change the constitution almost every year; in the USA, on the other hand, the hurdles are very high. The course is therefore often set by judges reinterpreting the constitution. Has the US done well with this system?
I'm embarrassed about this question (smiles). It is true that our constitution was deliberately made to be very difficult to change. And that's a good thing.
Why is it good when decisions on controversial issues such as same-sex marriage are made by nine judges and not by the citizens or a parliament?
In every system there must be an authority that decides whether a law is compatible with the basic rules of the state. In the US it has always been the Supreme Court. The idea behind this is that the constitution is directly applicable and takes precedence over ordinary laws or ordinances. Many constitutions in the world promise wonderful things, like the right to food or the right to shelter, which are not enforceable. We, on the other hand, have traditionally been doing a constitutional compliance review, longer than any other country.
In the opera mentioned at the beginning, your likeness sings: "The nice thing about our constitution is that - like our society - it can develop." Does that go to the heart of your attitudes?
Yes. The beginning of our constitution, "We the People of the United States", at the time of writing in 1787, meant only a very selective group that did not include women or Indians. But the great thing about this institution is that we have tried to involve more and more people over the past 200 years.
Thirty years ago, your predecessors came to the conclusion that homosexuals can be imprisoned. Today same-sex couples are allowed to marry. The same document - and yet such different ratings. How do you decide what to read from it? Based on surveys?
No certainly not. But as a colleague once said: courts should never decide based on the weather, but they are inevitably influenced by the climate of their era. My preferred clause is in the 14th Amendment to the Constitution of 1868. It says that no state can deny an individual equal legal treatment. If you had asked a judge at the time whether women had the same political rights, the answer would have been: "Of course not." That would be unthinkable today. But the basic idea of the dignity of every person was there from the beginning and was in our declaration of independence. The principle of equal treatment is constantly being reinterpreted by the Supreme Court and its application has changed over time.
You are known for your strong advocacy for the rights of women and minorities through the equal treatment clause. Overall, is the US a fair society today?
Overall, yes. But I still remember my first cases as a lawyer in the early 1970s, when women were blatantly discriminated against. A more recent example is the case of a woman named Lilly Ledbetter, who filed a lawsuit because she had been paid less than men for the same work in her company for years. The Supreme Court dismissed their lawsuit in 2007 because of the statute of limitations, but in my minority opinion I criticized this and wrote that the ball was now with Congress. Just two years later, Congress passed a law named after Lilly Ledbetter that eased the time frame for such discrimination claims, and overall we have a system that can correct such injustices. But we are still far from a perfect society. For example, we continue to have problems in the police force - especially in communities where the majority of police officers are of a different skin color than the citizens they deal with. Ferguson is just one of several problem cases. Much is better today, but there is still a lot to be done.
From the outside, the US legal system is often perceived as unfair. For example, accused companies are usually forced to make a deal with the prosecutor before their case comes before a judge. That can seem unfair.
I could tell you a hundred other stories now about people who trusted the judges to rule fairly. Of course, comparing them reduces the risk of losing everything. But in the area of discrimination, I've even seen a few cases where a company would have tried to settle but didn't. We recently decided in the case of a young Muslim woman who was unable to get a job in a clothing store because of her headscarf. The case got to us and she was right.
What do you think of the accusation that the US applies its law far too often in an extraterritorial way?
Here, too, I can give you many counterexamples. American judges often speak out against such an application. We recently dealt with one such case - it concerned a company from Europe that had been complicit in crimes committed by the Argentine junta. The company now also wanted to sue some victims in the USA. In the opinion of the Supreme Court, however, the fact that this company also sold products in the USA was not sufficient for the American judiciary to have jurisdiction.
What do you see as the greatest challenge for the US legal system?
On the question of how we can keep our freedom in times of terror. People are scared. And one response from our government is to go far more deeply into the lives of individuals. We cannot give our enemies a greater gift than if, more and more like them, we disregard human dignity. I hope we learned from our mistakes. Think of our role in World War II, when we Americans of Japanese descent were put in internment camps just because of their origins - terrible. Even then, the desire for security had overshadowed everything else. The great challenge of our time is to maintain a free society despite the terrorist threat.
Are you excited that the US may soon have its first female president?
I am very happy that this is at least possible or even likely. It is time for our country to use all of its talents. When I came to the Supreme Court, there were only 7 women in the 100-member Senate; today there are 20. That is still not enough, but it is a step in the right direction.
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