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September 18, 2020

Saddened by the passing of Justice Ruth Bader Ginsburg, who gave us advisory federal sentencing guidelines

459px-Ruth_Bader_Ginsburg _SCOTUS_photo_portraitI was sad to see this news this evening:

Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington.  She was 87.  Ginsburg died of complications from metastatic pancreatic cancer, the court said....

Chief Justice John Roberts mourned Ginsburg’s passing.  “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.  Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement....

Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years.  She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served....

On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts.

Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use.  During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers....

Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights and pay discrimination against women.  She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts.  “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.”

She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

When I think about Justice Ginsburg's sentencing legacy, I do not think about any single opinion but rather about two notable votes. Specifically, Justice Ginsburg was the sole justice to vote with both remarkable majority opinions in US v. Booker: she was the key fifth vote for the merits opinion finding the mandatory federal guidelines unconstitutional and she was the key fifth vote for the remedial opinion making the guidelines advisory. Notably, Justice Ginsburg did not write any opinion in Booker to explain either vote, but her two votes gave us the advisory guideline system that has now defined the federal sentencing system for well over fifteen years.

September 18, 2020 at 08:49 PM | Permalink


A remarkable lady who gave her all to the maintenance of a balanced and fair US Supreme Court. Her sad passing leaves US Justice at its most vulnerable and dangerous point in my memory. D.Trump will undoubtedly attempt to exploit the vacancy on the Court for his own advantage, something Ginsburg put her own health at risk to abstruct. The honourable course would be to ensure her values and sacrifice are protected by speaking up for the deferment of a new appointment until the Presidential election and the instalment or reinstalment of the next president of the US.

Posted by: peter | Sep 19, 2020 4:33:19 AM

I am surprised by the comment above-- the grateful echo of "having given advisory..." I thought her Booker position was illiberal, hurt the lives of many people, and promoted the American paradigm of mass incarceration.

Posted by: Fluffyross | Sep 19, 2020 9:38:19 AM

We can debate much about Booker and Justice Ginsburg’s role therein, but mass incarceration was far along in the US before that ruling and it arguably helped contribute to some declines (though data and alternative scenarios can be spun in many ways).

Posted by: Doug B. | Sep 19, 2020 1:05:56 PM

In addition to Booker, I think she was only justice who was in the majority in ALL of the key post-Apprendi line of cases (except for Harris, but that was overruled by Alleyne, in which she joined the majority).

Posted by: Mike Lepage | Sep 19, 2020 5:02:34 PM

I believe Stevens and Ginsburg always voted together in these cases EXCEPT for the Booker remedy. She was clearly a big fan of Sixth Amendment rights, and now Justice Thomas is the last remaining member of the Apprendi majority on the Court (while Justice Breyer became the last remaining Apprendi dissenter a few years ago when Justice Kennedy retired).

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