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A “view” from the Court: The Ginsburg-Scalia show

Nearly two weeks ago, Justices Antonin Scalia and Ruth Bader Ginsburg made an unusual joint appearance at the National Press Club to chat with the veteran TV journalist Marvin Kalb.

The talk was ostensibly about First Amendment issues, but it veered into topics such as the longtime friendship between the two jurists, who are often on opposite ends of the ideological spectrum.

“I have never gotten angry at Ruth or any of my colleagues because of anything they wrote in an opinion,” Justice Scalia said during the ninety-minute session on April 17.  “If you can’t disagree with your colleagues without taking it personally, you ought to get another day job.”

“So Ruth and I disagree on the law all the time,” he continued. “But it has never had anything to do with our friendship.”

Justice Ginsburg chimed in that “we do have a difference in style. People might regard my opinions as dull, rather boring.”

Turning to face her colleague, she added: “Yours are really jazzy sometimes.”

Today in the Supreme Court, the Ruth and Nino Show will be the opening act before the main event — two hours of highly anticipated arguments over the constitutionality of warrantless police searches of arrestee cellphones.

(Actually, the first act is Justice Sonia Sotomayor, fresh from the many rave notices she received for her stinging dissent in last week’s decision on Michigan’s ban on the use of race by public universities in their admissions process.  She delivers two dry, unanimous opinions on the fee-shifting provision of the Patent Act.  She does warm up the crowd, though, getting a chuckle by noting that Justice Scalia has joined all but “footnotes one to three” of one opinion.  Those footnotes, it should surprise no one, deal with legislative history.)

So, it’s on to Justice Ginsburg, who has the majority opinion in Environmental Protection Agency v. EME Homer City Generation L.P. and a companion case. The cases concern an EPA regulation under the Clean Air Act called the Cross-State Air Pollution Rule, or Transport Rule. It requires at least twenty-seven “upwind” states to reduce power-plant emissions of pollutants that harm the air quality in “downwind” states.

Justice Ginsburg today does not threaten the view she acknowledged at the National Press Club event that her opinions can be a bit dull.  In this case, though, the material is pretty tough:  NAAQS (national ambient air quality standards), SIPs (state implementation plans), and FIPs (federal implementation plan).

She does liven up her bench announcement, though, with references such as “substituting a FIP for a SIP,” as well as quoting from the King James Version of the Bible.

Noting the difficulty of the Clean Air Act’s requirements on eliminating air pollution in downwind states, she cites John 3:8. “As expressed in a holy book,” she says, “‘The wind bloweth where it listeth, … thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.’”

“In short, we are satisfied that EPA’s construction of the statute reasonably responded to a perplexing problem the statute itself does not resolve,” Justice Ginsburg says. She perks up as she notes that “Justice Scalia, joined by Justice [Clarence] Thomas, has written vigorously in dissent,” and she draws laughs as she emphasizes “vigorously.”

Justice Scalia begins a summary of his dissent. He first suggests that “these cases are not of earth-shaking importance.”

“The reason I think it is worth explaining my dissent,” he says, “is that the cases implicate the major problem that many citizens have with the Federal Government these days: that they are governed not so much by their elected representatives as by an unelected bureaucracy operating under vague statutory standards.”

Suggesting that the majority was mistakenly approving the EPA’s efforts to reach a desired result, notwithstanding what the statute requires, Justice Scalia says “today’s opinion is a textbook example of how a court established to assure government by the people can instead assure government by the bureaucracy.”

He continues for some fifteen minutes, with much language that certain observers might find “jazzy.”

He offers what he describes as a “trick question that one might find in a quiz show,” about how responsibility should be assigned “when States A, B, and C each contribute ten units [of pollution] to a downwind State’s pollution, but the required overall reduction to enable the downwind State to meet the Clean Air Act standards is only twenty-one units?”

“As one of my grandchildren might say, well DUH!,” the justice says. “The answer is obviously seven.”

In the courtroom, it doesn’t appear that everyone finds this answer so obvious. Justice Scalia’s point is to chide the majority for concluding that one state might be responsible for eliminating all twenty-one units of pollution if that state can do it most economically.

Further making his summary relevant to his grandchildren and other youngsters, he says, “The Clean Air Act is not a game of pin-the-tail-on-the-donkey.” (To fully understand the reference, one has to go to the written dissent, which in turn refers to the oral argument transcript. In both places, Justice Scalia is suggesting that the EPA required states to hit an emissions target before it was defined.)

“Today’s decision feeds the uncontrolled growth of the administrative state at the expense of government by the people,” Justice Scalia says, winding down. “I dissent.”


He doesn’t “respectfully dissent,” as he sometimes phrases it. But despite his profound disagreements today with Justice Ginsburg, his good friend and colleague, it doesn’t seem personal.



Recommended Citation: Mark Walsh, A “view” from the Court: The Ginsburg-Scalia show, SCOTUSblog (Apr. 30, 2014, 9:29 AM),