WSJ Supreme Court reporter Jess Bravin discusses Ruth Bader Ginsburg’s business legacy, and the court vacancy’s ramification for American business, in conversation with Theo Francis.
Q: Let’s start with Ruth Bader Ginsburg’s legacy in terms of business law.
A: Justice Ginsburg was best known as a pioneering advocate for women’s equality, which certainly has some business implications.
Her most famous employment discrimination case was a dissent in Ledbetter vs. Goodyear, which was about how you calculate the time from an act of discrimination. There are very tight deadlines to file a federal discrimination complaint. Lilly Ledbetter was hired by Goodyear in the early 1960s and only discovered when she was about to retire that she was paid significantly less than men in similar positions. Goodyear’s position, and the court’s, was that the act of discrimination came when she was hired, and the deadline to file had expired. Justice Ginsburg argued that every time she got a paycheck was a new act of discrimination, because it was lower than it should have been.
Justice Ginsburg’s dissent called on Congress to correct what she argued was the majority’s error in interpreting the law. She was extremely pleased when the first bill President Obama signed in 2009 was the Lilly Ledbetter Fair Pay Act. It explicitly told the courts to calculate the deadline the way she described.
When there has been ambiguity in the law, Justice Ginsburg asked, what was the point of this law? When it comes to employment discrimination cases, she generally looked at civil-rights laws as intended to arm individual employees against the more powerful employer. The same was true of consumer cases. She tended to take an expanded view of those rights.
In another important area of law for business—but not one that can easily be put in an ideological basket—she was perhaps the most hard-line member of the court in protecting copyright. Businesses own a lot of copyrights, and they don’t like infringement.
Q: What about other kinds of business law?
A: Justice Ginsburg wasn’t an economic redistributionist—she wasn’t a socialist. The Wall Street Journal headline when President Clinton nominated her in 1993 referred to her as “A Centrist Appellate Judge.” She had a very clear understanding of the needs of business and the role of business in the legal system and the economy.
Justice Ginsburg was also an expert on jurisdictional issues: How far can one state impose jurisdiction on something that happened in another state, or in its own state based on an action from an entity in another state?
There is a case being argued in October about whether Ford can be sued in Montana state courts over a traffic accident that took place in Montana, despite the fact that Ford isn’t based there. This type of question is pretty technical, and you have to be interested in the intricacies, or have a lot of money at stake. Justice Ginsburg was a legal perfectionist and took tremendous interest in all these technical questions of the law, along with civil procedure.
Most of what the court does is clarify the rules for lower court judges, so judges know what to do when these cases show up. Businesses are repeat players in the legal system. It can be more important to know what the rules are than to get their way on any one specific rule. What they may miss most about Justice Ginsburg is her expertise, interest and passion about areas of law that not every lawyer finds incredibly scintillating, but she did.
She believed in that New Deal vision of the federal government and its expansive power to improve people’s lives. When the Environmental Protection Agency regulated in furtherance of environmental protection, she was going to be sympathetic to arguments about why it’s constitutional. When they do things at odds with the purpose of the agency, she was more skeptical. Courts aren’t experts in hydrocarbon emissions; unless there’s something obviously wrong with what an agency did, let the agency do it.
Q: What implications does her death have for business cases pending before the court?
A: When there’s an eight-member court, you still need five votes for a majority. If the court splits 4-4, then the lower court ruling stands as-is, but it doesn’t serve as a nationwide precedent.
More broadly, this court has been very sympathetic to corporate America and big business interests anyway. Her vote wasn’t pivotal, because you had five conservative members who were very sympathetic to business arguments already. For things like arbitration clauses in form contracts on credit-card inserts, or environmental decisions, a vote of 5-3 or 5-4 isn’t a huge difference.
But remember, during the Trump years, we have seen a very conservative administration take a number of positions opposed by the business community, at least as reflected by many, many Fortune 500 companies.
They supported Deferred Action for Childhood Arrivals, the policy that allowed children brought to the U.S. illegally to remain and work.
was one of the plaintiffs opposing the administration’s cancellation of DACA. They had business reasons—employees, for example, who would lose their jobs. These larger companies, like their consumers, have more progressive social positions than the Trump administration.
The same is true of a number of LGBT cases. So Justice Ginsburg’s death means the court is less likely to rule on social issues in ways that Corporate America will favor. Affirmative action in education is another example. For 20 years, the large business community has favored it: They draw their employees from college graduates, they want to have a more diverse pool of candidates to pick from. So they supported affirmative action.
A case currently in the appeals court is likely to give the Supreme Court an opportunity to re-examine the constitutionality of race-conscious college admissions formulas. A more conservative court is likely to be much more skeptical than Justice Ginsburg and the liberals have been about that.
Q: This vacancy is reopening some structural questions about the Supreme Court. Let’s start with a simple one: The Constitution doesn’t say how many justices there should be, right?
A: Right. Originally there were six. From 1863 to 1866, there were 10. Then a Republican Congress tried to rein in President Andrew Johnson’s power by reducing the size of the court. (Johnson, of course, was a Southern Democrat who took over after Lincoln was assassinated, and he was at odds with Republican Reconstruction efforts after the Civil War.)
Since 1869, there have been nine. But there was a significant push to increase the number in the 1930s. You had an ultraconservative Supreme Court that was far out of touch with the majority of the public that had elected Franklin Delano Roosevelt to the presidency and the Democratic Party to control Congress. The Supreme Court was striking down tons of New Deal economic legislation. FDR felt the court was lawless, just making it up to frustrate his plans.
He proposed adding up to six more justices, ostensibly to assist those over 70 with their workload. It would have immediately ensured a liberal majority. Just then, the court started approving New Deal legislation, and the Senate wouldn’t back his “court-packing” plan.
It has been dubbed “the switch in time that saved nine.” To the extent that he wanted the justices to be more open to his administration’s projects and innovations, it was a successful ploy.
Q: Democrats are raising the prospect again, aren’t they?
A: The talk began in 2016, when the Senate denied Merrick Garland a hearing after President Obama nominated him in March of an election year to succeed the late Justice Scalia. If President Trump seats another justice, and then loses the White House and the Senate, I think there will be very significant discussion about that.
Here’s the reasoning: If President Trump and the Republican Senate majority are re-elected, they would get to fill the seat anyway.
If, however, the president marches forward and fills that seat before or after the election, but loses the election, then you will see a situation where the public has indicated that it wants a different direction for the country. If the outgoing administration and Senate attempt to entrench their ideology on the Supreme Court regardless of the election’s outcome, then I think the chance of some legislative change is pretty high.
Q: What are Congress’s options?
A: The easiest is to change the number of justices. Congress could try to limit terms to 18 years, so every president gets to pick two justices. Whether that can be done by statute is debatable. The Constitution just says Supreme Court justices “shall hold their offices during good behavior” and can’t have their pay reduced.
Does that mean their office as a federal judge generally, or does that mean a justice of this court and no other? Perhaps they could be shifted to a federal appellate court, without losing salary or their titles. But there’s debate about that.
Congress could increase the number of Supreme Court seats immediately. It isn’t the kind of thing Joe Biden would do in a vacuum. He’s more of an institutionalist than that. But if he suddenly finds everything he wants to do struck down by the Supreme Court, he might change his mind.
Q: What risks does the prospect of Democratic court-packing pose for business?
A: I don’t think there’s going to be a confiscation of private property or anything like that.
There could be a reaffirmation and expansion of the Affordable Care Act. That’s an area where I think business wants stability more than any particular outcome. If they know what the health care system and rules really are, they can do their planning and know what their expenses and benefits are going to be. With a GOP victory, you’d get more of the health care uncertainty we have now, for at least another year or two.
Climate change is another big Democratic priority. Regulation and legislation in that area is going to be challenged by the businesses that would have to pay more to reduce carbon emissions—the power, coal, gas and oil industries, for example.
But a lot of other business sectors say they are very concerned about climate change and want action on carbon emissions. And, of course, some business would benefit from climate regulation—those making solar cells or batteries, for example.
Another conservative vote on the court would also further solidify its skepticism of what some call the regulatory state. This is now the big enemy of conservative jurisprudence. It’s a characterization of the post-New Deal federal government and its ability to regulate all kinds of economic activity based on the commerce clause of the Constitution: environmental protection, consumer rights, the FTC, SEC—a lot of these “alphabet soup agencies,” as critics like to call them.
That could mean a significant shift. The chief justice, while I think he is himself skeptical of the origin of a lot of those agencies, is also an institutionalist. Some of these agencies have been around longer than a century; everyone knows what they are, how they work. He would be more inclined, I think, to curb them at the margins than re-examine their whole constitutional basis.
I think Justice Thomas and possibly Justice Gorsuch would say there was a big wrong turn in 1937, and would prefer to go back to 1936.
Q: What do we know about the president’s leading candidates, and Joe Biden’s?
A: The front-runner for President Trump is Judge Amy Coney Barrett, on the Seventh Circuit Court of Appeals in Chicago. He interviewed her before deciding to go with Justice Kavanaugh. Previously, she was a law professor at Notre Dame.
I think we can say all the names the president is putting out there have been provided to him by conservative legal activists who have been grooming them and studying them and rewarding them with advancement for years. Judge Barrett would probably have similar views to the Gorsuch-Kavanaugh wing of the court. That’s not to say they’re all robots.
For example, Justice Kavanaugh recently sided with the liberal wing of the court in a broader interpretation of antitrust law, to rule that consumers could sue Apple over antitrust concerns about its app store. Justice Gorsuch took the minority’s narrower interpretation. The decision broadened the tools to fight antitrust cases more than Apple wanted.
Joe Biden hasn’t released a list like President Trump has. But he has said he intends to appoint a Black woman to the court. Some people who might come under consideration include Justice Leondra Kruger of the California Supreme Court, Judge Ketanji Brown Jackson of the U.S. District Court in Washington, D.C., and New York state Attorney General Letitia James.