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Family photo, 2018.
LEGAL OPINION

Ruth Bader Ginsburg dishes on the US Supreme Court

By Ephrat Livni

The US Supreme Court on June 7 released a speech (pdf) by justice Ruth Bader Ginsburg prepared for the Second Circuit Judicial Conference. She warned observers to expect many close decisions in the 27 remaining undecided cases to be resolved before the spring term ends this month and offered delightful insights into the inner workings of the high court.

Ginsburg, known in popular culture as RBG, indicated, albeit indirectly, to anyone waiting for her to retire that they should not hold their breath. Ginsburg began her remarks by reminding conference attendees that just after their last such gathering in 2018, justice Anthony Kennedy announced his retirement. “It was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead.” In other words, don’t expect her to make a similar retirement announcement any time soon.

The justice then went on to gently poke fun at the two conservatives who Donald Trump appointed to the bench, Neil Gorsuch and Brett Kavanaugh. The dig showed that no matter how honorable the job may seem, and despite the esteem that the justices enjoy as the most powerful lawyers in the US, working on the high court involves dull duties, like any other gig. Ginsburg explained:

With justice Kavanaugh’s arrival, justice Gorsuch cheerfully relinquished to our newest colleague the tasks assigned to the junior justice—answering the telephone the rare times it rings during conference, opening the door when an aide appears to deliver papers a justice left behind, conveying to the entourage from the clerk’s office, the public information office, and other court administrators the dispositions reached at conference, and, most thankless of all chores, sitting on the court’s Cafeteria Committee.”

But she didn’t just rib the new guys. Ginsburg remarked on how talkative—or not—her colleagues had been this term, noting that justice Stephen Breyer “retained his title” as the one who spoke the most during oral arguments, while Sonia Sotomayor ranked a close second. Sotomayor asked the first question more often than anyone else, leading the queries a total of 48 times.

As for the famously reticent justice Clarence Thomas, he was unusually curious this term. Thomas broke his silence for the first time since 2016, asking three questions in a single argument, though he “ordinarily asks no questions because he thinks the rest of us ask too many,” Ginsburg quipped. She was referring to a recent interview in which Thomas responded to a query about whether justices should pose more questions with, “Oh God no. Don’t say that.”

Ginsburg also noted laudable new developments this year, pointing out that Kavanaugh made history by bringing on board an all-female law clerk crew. As a result, for the first time ever, women clerks outnumbered men at the high court. But she noted that female advocates arguing before the bench were still vastly outnumbered by male counselors, making up only about 21% of the attorneys presenting.

Notably, RBG didn’t make any charming observations about her boss, chief justice John Roberts, though she also didn’t single out Elena Kagan or Samuel Alito, so perhaps rank wasn’t a consideration, after all. She saved her last remarks for the advocates who will be filing future briefs, pointing out that the word limit for their main written arguments has been cut down from 15,000 words to 13,000. Reply briefs will also now be due at least 10 days before oral arguments, instead of the previous seven-day deadline.