At ACS Convention, Justice Ginsburg Demonstrates Humor, Touts Power of Dissents

by Nicole Flatow

When making predictions about the U.S. Supreme Court, “those who know don’t talk, and those who talk don't know,” Justice Ruth Bader Ginsburg quipped at the American Constitution Society's 2012 National Convention, quoting from a Reuters article by Joan Biskupic.

In a Friday night address at the Capital Hilton in Washington, Ginsburg mixed humor with commentary on the state of the court. She poked fun at those who followed one rumor that the court would issue its decision on the Affordable Care Act on May 24, saying those rumor-followers got their “just desserts” when they learned that the only decision announced from the bench that day was on Section 8B of the Real Estate Settlement Procedures Act.

But that didn't stop attendees at Friday night’s address from speculating about Justice Ginsburg’s discussion of the importance of dissents.

Following humorous observations on the media frenzy surrounding the health care litigation and lawyers' attempts to discuss "fleeting expletives" tactfully before the high court, Ginsburg turned to a serious discussion of dissenting opinions.

She spotlighted two recent decisions in which she issued strong dissents, and subsequent action by other branches of government righted what she considered to be egregious wrongs.

One decision, which garnered significant attention, held that Lilly Ledbetter could not move forward with her lawsuit under Title VII of the Civil Rights Act of 1964 seeking equal pay for equal work.

Ginsburg called the decision “entirely out of touch with the real world of work,” reasoning that requiring litigants to file suit at every point at which they could have gotten a raise “could not have been what Congress intended."

Ginsburg had emphasized the strength of her opposition to the ruling by reading her dissent aloud from the bench, and in her remarks Friday, she celebrated subsequent action by Congress to pass the Lilly Ledbetter Fair Pay Act.

Another decision, issued in October with little notice, reinstated the conviction of a grandmother for allegedly shaking her baby grandson to death. The decision was a summary reversal and the court did not hear arguments on the case.

Ginsburg lamented that not only was the defendant, Shirley Ree Smith, “abysmally represented at her trial;” there was also “no support for the state’s theory of so-called shaken baby syndrome.”

“What is now known about shaken baby syndrome, we noted, casts grave doubt on charges against Smith,” Ginsburg said.

In one of the few commentaries on the case, Slate’s Emily Bazelon called the case “easily one of the most vindictive of the term,” though “hardly anyone noticed.”

But Ginsburg was heartened that here, too, the intervention of another branch of government led to the justice she had called for in her dissent. In April, California Gov. Jerry Brown commuted Smith’s conviction in the first grant of clemency in his current term.

“Justice at last prevailed,” she said. “Don’t you agree?”

Watch video of Ginsburg's address here.