Justice Ruth Bader Ginsburg

  • November 10, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.

    Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.

    The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.

    Hobby Lobby’s Substantial Burden

    The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”

    Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • May 18, 2015

    by Caroline Cox

    The Supreme Court issued its decisions today for Henderson v. United States, ruling that when a person is convicted of a felony, a court can transfer his guns to a third party, and City and County of San Francisco v. Sheehan among others.

    Kenneth Jost argues at Jost on Justice that the decision in Williams-Yulee v. Florida Bar “should not be dismissed as inconsequential because the alternative would have made judicial elections much worse than they already are.”

    In The New York Times, William Baude suggests that the Supreme Court’s decision to grant review in Spokeo v. Robins may postpone its ruling in Zivotofsky v. Kerry.

    At Salon, Paul Campos considers the ruling in Boston Marathon bombing trial and argues that the United States has not thought enough about the death penalty.

    Krishnadev Calamur writes for NPR about Judy Clarke, one of the defense attorneys for Dzhokhar Tsarnaev and an outspoken opponent of the death penalty.

    In a new episode of Slate’s Amicus podcast, Dahlia Lithwick discusses the news that Natalie Portman will portray Justice Ruth Bader Ginsburg in an upcoming film.

  • May 14, 2015

    by Caroline Cox

    Linda Greenhouse considers in The New York Times what will happen after the Supreme Court announces its decision in Obergefell v. Hodges.

    At Buzzfeed, Chris McDaniel reports that the Oklahoma Attorney General misled the Supreme Court about a letter on the availability of drugs for lethal injection.

    Edward Blum argues in the Los Angeles Times that the Supreme Court should grant review in a case that examines how Texas created its state Senate districts” and could “reestablish electoral fairness in dozens of voting districts.”

    Martin Kaste of NPR explains that police are reforming common practices and tactics in light of growing social pressure and new technologies.

    Gina Barton discusses in the Milwaukee Journal Sentinel how the Tony Robison investigation illustrates the changes to investigations of police accountability.

    At SCOTUSblog, Kali Borkoski writes about Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer presiding over a mock trial of Don Quixote at the Shakespeare Theatre.

  • February 25, 2015

    by Caroline Cox

    Katrina vanden Heuvel writes in The Washington Post that there is reason to hope for significant criminal justice reform

    In USA Today, Richard Wolf explains the religious discrimination case against retailor Abercrombie & Fitch, which asks to the Supreme Court to consider whether job applicants must ask for religious accommodations or the employer should recognize the need for them.

    David Welna reports for NPR on how the Senate Intelligence Committee report on the CIA interrogation and detention techniques has changed arguments for terrorism suspects at Guantanamo Bay.

    Scott Dodson discusses Justice Ruth Bader Ginsburg and her impact on the Supreme Court and modern jurisprudence at Hamilton and Griffin on Rights.

    In The New York Times, Katie Zernike reports on a New Jersey judge’s ruling that Governor Chris Christie broke the law by not making full pension payments.

    Mark Joseph Stern takes a look in Slate at new plans from state legislatures to tackle the problem of rape on college campuses.