Look, I love Ruth Bader Ginsburg, don't get me wrong. Where would I be right now without her (hint: it involves shoveling manure somewhere in the Midwest)? She was a pioneering pioneer for gender equality when she was practicing law, and she's a damn fine justice. But let's face it, sometimes she puts some pretty frickin' weird things in her opinions.
When I was clerking for RBG in 1998-1999, we clerks would marvel at drafts returned to us with phrases like "homed in on" added in the margins. But, hey, what fun would it be to be a Supreme Court Justice with life tenure if you couldn't exercise your idiosyncracies from time to time--in other words, whenever the hell you want?
Here's the latest. I was teaching a Supreme Court decision the other day in my environmental law class, in which Justice Ginsburg was the one dissent on an otherwise unanimous Court. The case is about the Superfund law, or CERCLA. One of the questions in the case is whether the federal trial court, or district court, properly apportioned damages between the two solvent defendants. The parties in the case had not presented any evidence or advanced any arguments on the matter, but the district court decided on its own to split up the damages. Addressing this issue, RBG said this:
Given the party presentation principle basic to our procedural system . . . it is questionable whether the court should have pursued the matter sua sponte. See Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring) ("Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief."). Cf. Kaplan, von Mehren, & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1224 (1958) (describing court's obligation, under Germany's Code of Civil Procedure, to see to it that the case is fully developed).
What's going on with this Cf. cite to a 1958 law review article about German civil procedure? I love it! The fact that it's a "cf" cite instead of a "but see" or something; the fact that it's to a law review article, that the article is from 50 years ago, and that it's about Germany. Now, in many ways, the cite is not surprising--Justice Ginsburg started off as a scholar on comparative civil procedure. If I'm not mistaken, she wrote a book about Swedish civil procedure or something. And, she was also on the Harvard Law Review in 1958, so perhaps she edited this piece. Perhaps it's even the piece that inspired her to go study comparative civil procedure. If that's true, then maybe it's in some way responsible for her success in the legal academy which then translated to becoming a Supreme Court Justice. So maybe in some ways she's paying homage to an article that changed her life. I don't know. But one thing I do know is that, as a cite in a Supreme Court opinion, it's really, really weird.
(UPDATE: I've put the entire "Clerkin' for RBG" Essay here: Download Clerkin2)