Justice Ginsburg’s Criminal Justice Legacy: Fair Tribunals, Fair Punishment
Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in important decisions extending the rights to a jury trial, to an impartial tribunal, and to counsel. She also voted to shield juveniles and people with mental impairments from excessive punishments and to extend protections to property owners who faced civil penalties due to criminal wrongdoing. As our review aptly shows, Justice Ginsburg’s work in criminal justice lived up to the ideals of the Torah passage that she displayed behind her office chair as a Justice, which read “Justice, justice shalt thou pursue . . . ” Rabbinic scholars interpret the passage as a command for judges to provide meaningful hearings for those who seek justice, that judges should act with impartiality toward all who come before them, and should temper strict justice with mercy. She likely pursued these principles in other areas of law as well—the commands for meaningful and impartial justice do not apply exclusively to criminal judges. Nonetheless, the principles arguably apply more poignantly in the criminal justice area which, unlike other areas of law, strives to provide heightened constitutional safeguards while also permitting severe punishments.
Our review of her five-vote majority criminal justice jurisprudence also reveals three interesting facts. First, she is counted in a surprisingly high number of five-vote majorities in criminal justice cases during her tenure on the Court. Second, we found a remarkable number of landmark criminal decisions in which she cast a vote in a five-vote majority. While her votes do not make her a “swing vote” in the sense of being the median justice who swayed the majority, her decisions nonetheless made the outcomes in these close cases possible. The fact that so many landmark cases are five-vote majority cases also means they may be most vulnerable to reconsideration in the future. Third, Justice Ginsburg, considered by most as part of the progressive wing of the Court, did most often side with the defendants in the criminal justice area, but not always. Notably, the few majority or concurring opinions she produced in these cases tend to be those in which she sided with the government. She would have been assigned to write the majority opinions, but the concurring opinions she likely chose to write to explain votes that some may have thought out of step with her usual positions reading constitutional rules more expansively. Thus, the novel empirical approach presented in this Article enables us to appreciate Justice Ginsburg’s true criminal justice legacy of providing meaningful procedural protections to criminal defendants, including the right to counsel, to a jury trial, and the right to an impartial tribunal, as well as protecting children, people with mental impairments and property owners from excessive punishment. By exploring these themes in her critical five-vote majority jurisprudence, the Article sheds new light on the justice ideals of this iconic jurist and shows her to have lived up to the Torah command to pursue justice.