The ideological fog that often blurs coverage of the judiciary seems particularly thick as the Supreme Court convenes this week for a new term. The press routinely describes Ruth Bader Ginsburg and Stephen G. Breyer, Bill Clinton's two nominees to the Court, as "centrist," or "moderate." In newspaper accounts, the word "pragmatic" follows their names as if it were an honorific.
Yet only someone at the far left end of the spectrum can honestly view the jurisprudence of Justices Ginsburg and Breyer as "moderate" or "centrist." It is true that the two Clinton appointees are not activists on the order of the late William Brennan and Thurgood Marshall, but that does not make Team Clinton "moderate" or "centrist." By such lights, Franklin Roosevelt would qualify as a conservative.
Since Ginsburg and Breyer joined the Court in 1993 and 1994, they have, almost without exception, come down on the liberal side of major constitutional disputes. Their opinions rely heavily on dry quotations from case law, a common Warren Court device. But their pedestrian prose belies a quietly persistent activism that is distinctly liberal and without any New Democrat qualifications. Particularly in regard to criminals' rights, Ginsburg and Breyer are greatly out of step with the poll-driven politics of the man who appointed them. The liberal "quartet" of which they are leading members has handed down many opinions that make for timely reminders that the 2000 presidential election is crucial to the rule of law. The next president will probably make at least a couple of Supreme Court appointments. If Clinton's are any guide, another Democratic president would give liberal activists on the bench a working majority.
Issues of federalism are a helpful starting point for gauging the politics of Ginsburg and Breyer. Both justices favor greater power for the federal government and a correspondingly diminished role for the states. They dissented, for example, in United States v. Lopez (1995), the landmark case in which the Court struck down the Gun-Free School Zones Act as exceeding Congress's authority to regulate under the Commerce Clause. Lopez reversed 60 years of unchecked federal self-aggrandizement at the expense of the states. In Breyer's dissent, which Ginsburg joined, they firmly distanced themselves from the Court's majority.
Similarly, in Printz v. United States (1997), Ginsburg and Breyer, along with Stevens and Souter, dissented from the majority's ruling against the Brady handgun law's requirement that local law enforcement officers perform -- free of charge to the federal government -- background checks on prospective handgun buyers. In his dissent, Breyer sought guidance on the proper constitutional order not from the intentions of the Framers, but from the "federal systems of Switzerland, Germany, and the European Union." (He did, however, note conscientiously that Madison and Hamilton explicitly "reject[ed] certain aspects of European federalism.")
Clinton's justices likewise have been reliable warriors for various social causes espoused by liberals. In Washington v. Glucksberg and Vacco v. Quill (1997), the Court upheld state laws in Washington and New York prohibiting assisted suicide. Ginsburg, however, joined Justice O'Connor's separate concurring opinion, which left open the possibility of recognizing a constitutional right to assisted suicide in the future. In another separate and concurring opinion, Breyer talked of a "right to die with dignity." Ginsburg and Breyer joined the majority in Romer v. Evans, which declared unconstitutional a voter-approved amendment to Colorado's constitution that prohibited special anti-discrimination laws for homosexuals.
Ginsburg and Breyer have been much less solicitous of the rights of religious minorities. Ginsburg was part of the majority in Board of Education of Kiryas Foel v. Grumet (1994), which declared unconstitutional New York's creation of a single school district to serve an enclave of Hasidic Jews. In Agostini v. Felton (1997), the Court showed more favor toward religious freedom, causing Ginsburg and Breyer to dissent. The Agostini decision overturned a 12-year-old ruling in Aguilar v. Felton (1985), which forbade New York City from sending public school teachers into parochial schools to provide remedial education to disadvantaged children. Ginsburg's dissent, joined by Breyer, Stevens, and Souter, was unusually pointed by her normally staid standards. She accused the majority of not abiding by the Court's "non-agenda-setting character" -- a curious remark given her liberal activism on so many other issues.
Ginsburg has not disappointed feminists who supported her nomination. She wrote the majority's opinion in United States v. Virginia (1996), which forced the Virginia Military Institute to admit female cadets after a century and a half of all-male enrollment and instruction. Virginia is the most radical feminist opinion handed down by the Court since Roe v. Wade. Brushing aside expert testimony, Ginsburg criticized VMI's reliance on "fixed notions concerning the roles and abilities of males and females" and "overbroad generalizations [that] make judgments about people that are likely to . . . perpetuate historical patterns of discrimination." Even so, in a footnote she acknowledged that VMI would have to "adjust aspects of the physical training program" because of "physiological differences between male and female individuals." In an eloquent dissenting opinion, Justice Scalia lambasted the majority for "abolishing public single-sex education" and for writing the "smug assurances" of the age into the Constitution.
Ginsburg and Breyer contributed again to feminist jurisprudence in Miller v. Albright (1998). The Court, in a 6-3 vote, upheld federal statutes that set different citizenship requirements for illegitimate children born abroad to U.S. citizens. If the father was a U.S. citizen, the offspring was required to obtain formal proof of paternity. As the majority opinion pointed out, a child's blood relationship to his birth mother is easily established by records, unlike a child's relationship with his father. In her dissent, which Breyer and Souter joined, Ginsburg argued that this long-standing law was based on "stereotypes" and violated the equal protection clause of the Fourteenth Amendment.
Breyer has also made it hard to mistake him for a moderate. Along with Stevens, he dissented from the Court's 1999 rulings in Murphy v. UPS and Sutton v. United Airlines, which held that the Americans with Disabilities Act does not include people with high-blood pressure or myopia.
But criminals' rights are more significant to the activist jurisprudence of Ginsburg and Breyer than either federalism or social issues. And here Ginsburg and Breyer prove, beyond a reasonable doubt, that they are no moderates. Criminals' rights is, after all, the realm in which a New Democrat earns his keep, for "centrist" voters and independents willing to look the other way at sex-related Oval Office felonies are far less tolerant toward those who would menace their own lives, liberty, and property. Yet there is no "New Democrat" jurisprudence visible on this court.
Ginsburg and Breyer dissented from the Court's 5-4 decision in Kansas v. Hendricks (1997) to uphold that state's Sexually Violent Predator Act, under which sex offenders likely to recidivate could be involuntarily committed. The defendant in Kansas was an intractable child molester with a 40-year record of pedophilia who freely conceded he might strike again. Hardly a candidate for rehabilitation, the defendant once said, "treatment is bull --." In his dissent, Justice Breyer, joined by Ginsburg, Stevens, and Souter, argued that the Kansas law violated the Constitution's ex post facto clause by imposing additional punishment for the offender's crimes. The law must seek to "cure" rather than simply confine, Breyer stated, even while acknowledging a deep split among psychiatrists over whether pedophilia qualifies as a mental disorder.
In dissenting opinions, Ginsburg and Breyer have gone beyond merely preserving existing criminals' rights. In Minnesota v. Carter (1998), the Clinton appointees would have extended the exclusionary rule to throw out evidence obtained by a police officer who, while looking through a window from a public place, observed drug dealers packaging cocaine. Although the dealers did not live in the apartment and were not even staying there as overnight guests, Ginsburg and Breyer felt they deserved the same Fourth Amendment protection as the tenant. By contrast, Scalia in his concurring opinion noted that the Fourth Amendment was intended only to protect people in their own homes. Ginsburg and Breyer also would extend the exclusionary rule to bar the admission of allegedly tainted evidence not only in criminal trials, but in parole revocation hearings as well (Pennsylvania Board of Probation v. Scott, 1998).
The Clinton duo joined the majority opinion in Thompson v. Keohane (1995), which expanded the dictates of Miranda v. Arizona (1966). Keohane held that instead of deferring to state court determinations, federal courts should conduct their own factual reviews of whether a suspect was "in custody," and therefore in need of being read his Miranda rights. In their dissent in United States v. Balsys (1998), Ginsburg and Breyer insisted that the right against self-incrimination applies not only to people fearing prosecution in American courts, but also to those facing possible prosecution in a foreign country -- a position that no other justice embraced.
In the last few years, Ginsburg and Breyer have actively undermined reform of habeas corpus litigation. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act to put an end to the multiple, frivolous habeas appeals that state inmates, particularly death-row inmates, file in federal court, creating decades-long delays. Ginsburg and Breyer joined the majority in Lindh v. Murphy (1997), a 5-4 ruling that held that the new law applied only to death-row inmates, not less serious offenders, exempting the vast majority of habeas petitioners.
These two justices later joined the majority in another 5-4 vote in Hohn v. United States (1998), which gave the High Court jurisdiction to review lower federal court decisions that denied applications for appeal. In a dissent joined by Rehnquist, O'Connor, and Thomas, Scalia remarked that "the Court ignores the obvious intent of the [1996 law], distorts the meaning of our own jurisdictional statute, and overrules a 53-year-old precedent." In another dissent, Ginsburg and Breyer, along with Stevens, would have had the Court rule that a state inmate need not even present all claims to a state supreme court before availing himself of his federal habeas rights.
Ginsburg and Breyer have sought to bolster the rights of prisoners and allow them to sue their keepers more easily. In Sandin v. Conner (1995), the Court held that prisons do not have to afford inmates a mini-trial before placing them in disciplinary segregation. In separate dissents, Ginsburg and Breyer argued the due process clause of the Fourteenth Amendment required such proceedings. In McMillian v. Monroe County, Alabama (1997), Ginsburg filed a dissent joined by the Court's other three liberals that maintained that inmates should be able to sue county sheriffs as well as state prison officials under federal civil rights laws.
Breyer wrote the majority opinion in Richardson v. McKnight (1997), in which the Court held, 5-4, that guards working at private prisons are not entitled to qualified immunity from suit by prisoners alleging a violation of their federal civil rights. Breyer argued that "History does not reveal a 'firmly rooted' tradition of immunity applicable to privately employed prison guards," adding that "we have found no conclusive evidence of a historical tradition of immunity for private parties carrying out these functions."
In a dissent joined by Rehnquist, Kennedy, and Thomas, Scalia took issue with this historical survey. He reported that "as far as my research has disclosed, there may be more case-law support for immunity in the private-jailer context than in the government-jailer context." Scalia further noted, "The only sure effect of today's decision -- and the only purpose, as far as I can tell -- is that it will artificially raise the cost of privatizing prisons."
The Supreme Court's death penalty decisions have probably the most to teach us about the liberal activism of New Democrat appointees. There is no mistaking the bias at work in the death penalty opinions written by Ginsburg and Breyer. During Ginsburg's six years on the Court, 19 appeals of death sentences have generated full Court opinions. In those 19 cases, she has sided with the convict 13 times. In his five years on the bench, Breyer has ruled in favor of the death-row inmate in 10 of the 14 cases on the High Court's docket. And two of the cases in which they ruled against the murderer -- Felker v. Turpin (1996) and Calderon v. Ashmus (1998) -- were unanimous, narrowly drawn decisions.
Before Breyer was appointed, Ginsburg had a 3-2 record of ruling in favor of the convict. His confirmation only emboldened her liberal instincts. Since Breyer joined, she has been 10-4, exactly the same as Breyer, with whom she votes in lockstep. Frequently, Stevens and Souter join them. In short, the Supreme Court is one vote away from having a majority that is obstructionist against the death penalty.
Ginsburg's earliest anti-death-penalty ruling was Powell v. Nevada (1994). Kitrich Powell was arrested for felony child abuse of his girlfriend's 4-year-old daughter. When she later died of her injuries, Powell was charged with and convicted of first-degree murder. On appeal, the Supreme Court considered whether he had been given a probable cause hearing within sufficient time. Writing for the majority, Ginsburg applied retroactively a Supreme Court ruling that required probable cause hearings to take place within 48 hours of arrest. Since Powell did not receive a probable cause hearing until four days after his arrest, his incriminating statements had to be suppressed, even though, as Thomas noted in a dissenting opinion, the "statement was not a product of the [48-hour] violation."
The most peculiar example of Breyer's death-penalty jurisprudence is his dissent earlier this year to a memorandum opinion, Federal Republic of Germany v. United States (1999). Arguing that Arizona's pending execution of a German citizen would violate the Vienna Convention, Germany sought an injunction. In a per curiam decision, the Court denied Germany's request. In his dissent, which Stevens joined, Breyer argued, "in light of the fact that both the International Court of Justice and a sovereign nation have asked that we stay this case . . . I would grant the preliminary stay that Germany requests." By Breyer's reasoning, not only should death-row inmates be empowered to continue filing frivolous habeas appeals, foreign countries should be given veto power over the timing of our executions.
Ginsburg and Breyer have signed onto some other notorious opinions. Consider Calderon v. Thompson (1998), yet another horror story from the Ninth Circuit. In 1981, Ginger Fleischli's body was found buried in a field 10 miles from Thomas Thompson's apartment near Laguna Beach, California. A rope as well as a sleeping bag and blanket were around her half-dressed body; her head was wrapped with duct tape, and five stab wounds penetrated her head near the right ear. Thompson was convicted of her murder and sentenced to death in 1983. After multiple appeals and finally a request for a rehearing by the full court, a panel of Ninth Circuit judges in June 1997 denied further appeals by the condemned man. California officials scheduled Thompson's execution for August 1997.
Then just two days before the scheduled execution, a closely divided Ninth Circuit (now including two judges who had not participated in the earlier panel) vacated Thompson's death sentence on the grounds of ineffective assistance of counsel. The court said that errors by a judge and a law clerk had invalidated the proceedings.
In the Supreme Court's majority opinion, Justice Kennedy wrote, "It would be the rarest of cases where the negligence of two judges in expressing their views is sufficient grounds to frustrate the interests of a State of some 32 million persons in enforcing a final judgment in its favor." Nevertheless, Ginsburg and Breyer, along with Stevens, signed onto Souter's dissent, which defended the judges' last-minute intrigue.
The jurisprudence of Ginsburg and Breyer should serve as a clarion blast to conservatives toying with apathy or a third-party vote in the 2000 presidential election. On a wide range of key constitutional issues, the liberal bloc on the Supreme Court is one vote away from a liberal activist majority. And the cases of Ginsburg and Breyer have taught us that self-styled "moderate" Democratic presidents appoint immoderately liberal judges.
Andrew Peyton Thomas is an attorney in Phoenix, Arizona.