"What you have seen is the exercise of jurisprudence
based on long standing principles."
Ann: Justice Goldberg?
Justice Ginsburg: Yes. As you know, in my most recent lifetime my talent was for the law. Many think of law as a dry subject devoid of artistic attributes and ramifications, but you have only to spend a day in a courtroom, be it trial or appellate, to see that when the messiness of life comes up against the law, creativity is required to devise a remedy that fits within the guidelines laid out by society for a just and orderly governance of its citizens.
This is what we are seeing now as push has come to shove and the courts have had to stand as the last battlement against a struggling democracy. I am pleased with the way the system has worked, and hope that you are too.
What you have seen is the exercise of jurisprudence based on long standing principles. No great proclamations have been made. No posturing, no impassioned defense of the status quo or rational for radical change. Just simple statements of conclusions based on evidence or, more importantly, the lack thereof, and a spare reaffirmation of our federalist system of government where all powers not specifically granted to the federal government are reserved to the states.
That system is not perfect. You see injustices play out time and time again by minorities holding on to power by whatever means they can devise, and, in particular, with the gerrymandering of voting districts, minority hold on such power has become more entrenched.
Although, of course this concerns me greatly, I have two things to say. First, it is the price we pay for allowing government to remain based at the local level. And it is in keeping the laws and their consequences close to those who are most affected that we have accountability. True, such laws can get skewed to the benefit of those in power, but, if the principle of government by locality holds and if voting rights are secured, these injustices will eventually be righted because those most affected will make their displeasure known at the ballot box or, if necessary, by bring the matter before the appropriate court.
And that brings me to my second point. In keeping the state courts at a distance, i.e., reserved for those disputes which cannot be resolved by local governmental systems, and in keeping the federal courts at an even further remove, we reinforce the authorities granted to the courts because in such restraint lies the power of the judicial system.
Well does Justice Roberts understand that all of us in government, representatives, executives, and judicial appointees, serve at the pleasure of the people. Get too far ahead, and you will be removed from power one way or another. Get too far behind and you will find yourselves pushed out of office or made obsolete by the representative forces that put you there.
Ann: I thought the courts, most of them anyway, are inviolate because they are based on appointment and not subject to removal by vote or removal.
Justice Ginsburg: And that is the fiction, my dear, that we have all bought into so that we can function in this tripart system of government. But without the authority granted the judiciary by the people and their representatives, watch how fast it will be changed in one way or another.
Judicial decisions can always be revised or reversed by legislation or executive appointment. See, for example, the slide to the right in the many judicial appointments of this President. which, by the way, as regards the high court, were not as egregious as many seem to think.
Suffice it to say that the I am very well pleased in the manner that the courts of this country have held the line in protecting the most fundamental right of all, that of the right to a free and fair election. Without that, all else fails. The soft underbelly of our system of government is now on display for all to see in the challenges that are currently being brought against this system, so it is behooves us all to protect the independence of the judiciary.
It will be for the court system, the new administration, and the judges now and soon to be named, as the guardians of this system to find the balance of responsibility and protection such that rights are preserved for all of the people, not just those of your or my favored group.
There may, indeed there will, be decisions coming down from the high court that you will not agree with. However, for the most part, I believe they will be couched in language that is retrained and responsive to the society we live in now and based on the fundamental rights guaranteed by our Constitution.
If they are not, then the remedy is in our hands to change our laws or our representatives. It is a system that has stood the test of time, and so far, it is holding up well.
December 13, 2020