How Ruth Bader Ginsburg is trying to check the conservative majority

Washington CNN  — 

Justice Ruth Bader Ginsburg is in the liberal minority on the Supreme Court but has a way of steering the debate on a case.

Ginsburg spoke to CNN in a rare interview in her chambers this week. The 86-year-old four-time cancer survivor has resumed an active role in oral arguments and is often the first of the nine justices to pose a question. She regularly asks whether the Supreme Court should even decide the legal issue before it.

By framing the debate in this way, Ginsburg could limit the five conservative justices from setting new precedent over the dissent of the court’s four liberals.

Ginsburg’s approach goes back to her time in law school – but her expertise and emphasis offers liberals a path forward when the balance of power on the court is now solidly conservative. Ginsburg has taken up the cause in multiple recent disputes regarding the 2nd Amendment, criminal sentencing and tax law.

In an interview late Tuesday, Ginsburg talked about the rules for getting through the courthouse doors. She would not discuss specifics of any pending case and sidestepped questions about strategy or the ideological stakes on this divided court.

She said that procedural concerns can stop judges from intervening prematurely but noted that procedural safeguards can also ensure that worthy litigants are not kept out of the courthouse.

“It’s just instinctive to me,” she said. “Procedure is supposed to serve the people that law exists to serve.”

Last year at this time, Ginsburg was recovering from lung cancer surgery and missed several weeks at the court. She finished out the term in June. Soon after, she discovered a cancerous tumor on her pancreas, which was treated in August, and she resumed her active schedule.

Sounding energized and speaking animatedly, she told CNN on Tuesday that her year was off to a fine start: “I’m cancer free. That’s good.”

The justices are currently negotiating in their chambers how far to go in cases that have been argued and beginning next week will start a new round of oral arguments. Some of the fresh dilemmas will similarly raise procedural matters of who can sue and when, as well as how far the justices should run with a narrow lower court ruling.

Along with issues of immigration, reproduction rights and LGBTQ protections, the justices plan to review three disputes over President Donald Trump’s tax returns and other financial records.

Ginsburg on Tuesday did not discuss specifics of any case before the justices and sidestepped questions about any new interest in procedure arising from the ideological stakes on the divided court. The subject, she said, has intrigued her since her law school days.

As a fire crackled in her chambers, Ginsburg, dressed in red slacks and a tan jacket, elaborated on her fascination. She read from a sheet of paper she brought to the interview containing a “favorite quote: from the 1943 case of McNabb v. US.

“The history of liberty,” wrote Justice Felix Frankfurter, “has largely been the history of observance of procedural safeguards.”

A return to her past

The nitty-gritty of procedure that routinely concerns her is not what has brought Ginsburg public prominence in recent years. The women’s rights advocate who inspired the “Notorious RBG” meme and carries an “I Dissent” tote bag typically speaks about equality in the law and her life experiences (down to her exercise regime) before enthusiastic campus crowds.

But civil procedure was her field in her early years as a lawyer. She said her interest was whetted by a first-year class at Harvard taught by the late eminent law professor Benjamin Kaplan. Many of her fellow students did not care for this field, she said.

“Tort, contract, property – there was some familiarity with it,” she said. “Procedure was this strange area.”

But she was excited by civil procedure and made a point of volunteering in class as often as she could.

“Kaplan was a master of the Socratic method,” she recounted. “He never used it to wound. He used it to make the class engaging.”

Ginsburg transferred to Columbia University to be with her husband, Martin, who had been a student at Harvard Law, graduated a year earlier and gotten a job in New York City. But she retained her interest in civil procedure. After her graduation in 1959, she began teaching the subject and traveled to Sweden to study its civil procedures.

“Reading and observing another system made me understand my own system so much better,” she said, vividly recalling her research in Sweden a half century ago.

Ginsburg’s iconic status today has only been enhanced by her resilience in surviving four cancer ordeals since 1999. In the current session, she appears back with renewed vigor, especially on procedural questions – an emphasis that is important for the court’s left at the moment.

Last month, for instance, Paul Clement, the lawyer at the lectern challenging a New York City restriction on transporting firearms, was just two minutes into his argument when Ginsburg brushed past his rendition of 2nd Amendment history and focused on what mattered to her.

“The city has now been blocked by a state law,” Ginsburg said. “The state says: City, thou shalt not enforce the regulations. So what’s left of this case?”

Based on their records, the four liberals would likely protest any decision that favors the position voiced by Clement that “a transport ban is and always was unconstitutional” under the 2nd Amendment.

The early focus for Ginsburg was whether the dispute was moot and, thus, not fit for any high court resolution, let alone an expansion of the court’s 2008 landmark decision that declared an individual right to possess guns at home. She said in the December hearing that, essentially, the rifle association had already won.

“The (challengers) have gotten all the relief that they sought,” she argued. “They can carry a gun to a second home. They can carry it to a fire – to a practice range out of state.”

The challengers had wanted the still-pending case to lead to a rejection of transport rules nationally, not only in New York City. The justices have not ruled on the case.