Constitution Daily

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Video: Ginsburg explains Stone as inspiration for Fisher dissent

September 9, 2013 by NCC Staff


Justice Ruth Bader Ginsburg explains to the National Constitution Center’s Jeffery Rosen why a footnote from a 1938 Supreme Court decision led her to be the Court’s lone dissenter in June’s affirmative action decision.

ginsburgrosen1In the case of Fisher v. the University of Texas, the Court said in a 7-1 decision that a lower court would need to evaluate the university’s affirmative action program. The decision was seen as a set back from affirmative action supporters.

In writing her dissent, Ginsburg said, "In my view, the courts below adhered to this court's pathmarking decisions and there is no need for a second look.”

In her appearance at the National Constitution Center, Justice Ginsburg explained one inspiration for her dissent.

“I thought that the Court was taking a position that was astonishing if you go back to the origin of the suspect classification doctrine,” she said.

“It came out of a footnote in a decision by then Justice [Harlan] Stone in the Carolene Products case [from 1938]. This was a justice explaining that for the most part we trust the legislative process and the Court is deferential, respectful of the laws that Congress passes. So we regard these laws, we presume that what the legislature has done is constitutional.”

“There are two categories of cases, Stone suggested, that’s not the right approach. One is when fundamental liberties, when the guarantees of the Bill of Rights, are at stake. First Amendment rights are at stake. The Court is the guardian of the Bill of Rights and it should see to it that Congress remembers. That Congress is to pass no law abridging the freedom of speech or of the press.”

“The other category is cases where the majority was disadvantaging the minority. So then you couldn’t really trust the political process. The minority that was being oppressed didn’t have the political clout; you couldn’t trust the majority to deal fairly with [them].”

“What was suspect was the majority disadvantaging the minority. And over time it race has become the suspect criteria. That’s not what at all what the original idea was.”

“When a state, in the case of Fisher v. Texas, the state university wants to have an affirmative action plan, of the most moderate kind, who is the Court to say that’s unconstitutional?”

“So on my part, again, it was being deferential to another decision maker.”

“The Carolene Products footnote was an insight that the Court had. People think that the suspect classification started with the Korematsu case. It’s back there in the days when the Court stopped putting down social and economic legislation, and recognized for the most part the legislature should decide what is good social and economic policy, not the Court. The legislature.”

“The Carolene Products case was such a typical economic regulation case. And the Court said what the Congress did was OK. And then Stone said, maybe sometimes we have to be more suspicious about what Congress is doing.”

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