My Interview With RBG

I was very saddened to read yesterday of the death of Ruth Bader Ginsburg, after a long and hard-fought battle with cancer.  She was one of those rare Supreme Court justices who was not only a towering legal figure, but also a titanic cultural figure as well.

As the second woman to ever serve on the Supreme Court, Justice Ginsburg was a role model and iconic figure for generations of women entering the legal profession and, more broadly, women breaking boundaries in formerly male-dominated professions of all kinds.  Her jurisprudence shows that she was a tireless, and relentless, advocate for women’s rights, but also a brilliant and careful legal analyst and deft writer whose considerable brainpower was well applied to every case that came before the Supreme Court.

And in my view, at least, Justice Ginsburg was an important cultural figure in another way as well.  She was great friends with former Justice Antonin Scalia, even though their views on the law and its purpose could not have been farther apart.  They shared a love of opera, enjoyed socializing, and actually performed on stage in a 1994 Washington National Opera production.  It says something about the character and temperament of both Justice Ginsburg and Justice Scalia that they could put aside their political and legal disagreements and still enjoy each other’s company.  It’s a quality that we could use a bit more of in these bitterly divided, hyperpartisan times.

I had the privilege of actually interviewing for a clerkship position with Judge Ginsburg in 1984, when she was serving as one of the leading, up-and-coming judges on the U.S. Court of Appeals for the District of Columbia Circuit and I was beginning my third year of law school.  I had sent resumes and letters to all of the court of appeals judges and was thrilled to get a callback interview with Judge Ginsburg.  (I suspect that her husband, Martin Ginsburg, a Georgetown Law professor who had taught two tax classes I had taken, may have put in a good word for me.)  Alas, when I arrived for the interview Judge Ginsburg told me, with characteristic gentle forthrightness, that she had just offered the position to another candidate, who had accepted, and she said that under the circumstances if I wanted to skip the interview she would understand and be fine with that.

I was disappointed at the news, but figured what the heck — how often am I going to get a chance to talk for a while with one of the world’s leading legal minds? — so I said if it was okay with her I’d like to stay and chat, anyway.  We spent a very enjoyable hour talking about her husband and his great teaching style and a law review article I was working on about the intersession pocket veto, an issue that had arisen before the D.C. Circuit.  Judge Ginsburg asked some incisive questions about the issues and had some interesting observations about them, and then flattered me by asking for a copy of my draft article, which I promptly sent.  I may not have gotten a clerkship out of our brief encounter, but I did get a good story and some insights into an important historical figure from the experience.

When President Clinton appointed Justice Ginsburg to the Supreme Court, I knew she would be an important Justice, and of course she was.  Today I remember not only the leading jurist and influential role model, but also the funny, dynamic person I met more than 35 years ago.  The world is a little poorer today with her passing.

Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

gettyimages-1066751830The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.