Remarks for Second Circuit Judicial Conference
Bolton Landing, NY
June 12, 2009

Ruth Bader Ginsburg
Associate Justice
Supreme Court of the United States

            Beyond the Court’s business as usual, three extraordinary events marked the 2008 Term.  First, in January, the country welcomed a new President and Vice-President.  Days before their inauguration, President Obama and Vice-President Biden revived a tradition I had not experienced in my then over 15 years as an Associate Justice.  They visited the Court for a lively conversation all present enjoyed and appreciated.

            Second, on May 1, Justice Souter formally advised the President that he would leave the Court when we adjourn for the summer.  Each of us released a statement that day expressing our admiration and affection for a colleague we treasure.  Mine read:

            Among jurists with whom I have served Justice David H. Souter is the very best.  His level of preparation for the cases we consider is astonishing.  He works so hard at getting it right.  He is a genuinely caring man and a model of civility.  Never have I heard him utter a harsh or unkind word.  I count it my great good fortune to have known him as a working colleague and dear friend.

            Much as I will miss Justice Souter’s company, I was cheered by the next banner headline—the President’s nomination of Second Circuit Judge Sonia Sotomayor as the next Associate Justice.  The nominee will bring to the Supreme Court, as she did to the District Court and the Court of Appeals, a wealth of experience in the law and in life.  I am glad no longer to be the lone woman on the Court, and look forward to a new colleague well equipped to handle the challenges our work presents.

            Turning to the Term’s work, I will say some things about our caseload and lineups, then note a few of the most-watched cases, and, after that, describe Second Circuit decisions on our agenda.

            Last year, I predicted we might hear as many as 100 cases this Term.  That estimate proved incorrect, not at all to my regret.  We in fact heard 78 cases, up from 69 the preceding Term.  Next Term, if the 31 grants of review so far are a fair measure, we will stay in the high 70’s range.

            Of the 78 argued cases, opinions to date have been released in 60.1  Seventeen of the 60, or 28%, were 5-4 decisions, a rate considerably higher than last Term’s 16%.  There will be more 5-4’s in the Term’s final weeks, for several of the 16 cases still pending include some of the year’s most contentious issues.  Even so, agreement outran disagreement.  We were unanimous in 23 of the bottom-line judgments;2 of those, 17 yielded unanimous opinions as well.3

            The press tends to focus on splits with the Chief Justice, and Justices Scalia, Kennedy, Thomas, and Alito ranged on one side; Justices Stevens, Souter, Ginsburg, and Breyer on the other.  It is not always so.  True, nine of the 17 5-4 decisions already released shaped up that way.4  But in five of the 5-4’s, Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer composed the majority.5  There were unusual lineups as well.  Three of the sharpest divisions fit that description.

            First, Oregon v. Ice posed one of many post-Apprendi questions: Consistent with our current Sixth Amendment jurisprudence, could the judge rather than the jury find the fact essential to the imposition of consecutive sentences?  I answered yes, with Justices Stevens, Kennedy, Breyer, and Alito joining me.

            Second, Vaden v. Discover Bank involved a credit-card issuer’s resort to federal court to compel arbitration of a dispute with a cardholder, although the issuer itself had commenced the fray in state court.  The cardholder, however, had raised a counterclaim governed by federal law.  Justices Scalia, Kennedy, Souter, and Thomas joined me in holding that the issuer had to stay on the state-court track and there petition for arbitration if so inclined.  (The Fourth Circuit, whose decision we reviewed, had come out the other way, as had the Second Circuit (on a different ground).)

            Third, and by far most prominent of this set, in Arizona v. Gant, the Court revisited New York v. Belton, and substantially cut back on the scope of automobile searches incident to an arrest.  Once the scene has been secured, the Court held, police may search the interior of the car if—and only if—they reasonably believe that the vehicle contains evidence of the offense for which the defendant was arrested.  (No search for drugs when the arrest is for speeding.)  Justice Stevens wrote the opinion, joined by Justices Scalia, Souter, Thomas, and me.  Careful listeners will have noticed my emergence as a swing Justice—the only member of the Court in the majority in all three of these 5-4 decisions, with little noticed lineups.

            Among most watched cases that did not come to us from the Second Circuit, I have selected three: Wyeth v. Levine; Caperton v. A. T. Massey Coal Co.; and Northwest Austin Municipal Utility District Number One v. Holder.

            Wyeth had a predecessor.  The year before, in Riegel v. Medtronic, Inc., the Court held, 8-1, that the FDA’s regime for medical devices preempted all state-law suits charging that a device the FDA allowed to be marketed caused physical injuries.  I was the lone dissenter.  Wyeth v. Levine involved drugs rather than devices.  The absence of a preemption clause applicable to drugs proved dispositive.  Tort suits under state law could be maintained, the Court held 6-3, for claims of inadequate warnings on drug labels.

            Caperton v. A. T. Massey Coal Co. came with a record resembling John Grisham’s novel, The Appeal.  The case involved a $50 million jury verdict in favor of Caperton who charged that the coal company’s predatory practices drove him out of business.  The West Virginia Supreme Court of Appeals, dividing 3-2, reversed the judgment for Caperton and declared victory for the coal company.

            There was one problem.  Justice Benjamin, who cast the deciding vote in West Virginia’s highest court, was newly elected to the court.  The coal company’s CEO had spent $3 million to defeat the incumbent, whose seat Benjamin won.  Dividing 5-4, we concluded that Benjamin’s participation in the case violated Caperton’s right to Due Process.  Justice Kennedy’s opinion for the Court, joined by Justices Stevens, Souter, Ginsburg, and Breyer, emphasized the extraordinary facts: the CEO’s significant and disproportionate influence on the election, and the temporal relationship between the election and the pending case.

            Finally, the last argued and perhaps most important case of the Term, Northwest Austin Municipal Utility District.  At stake, Congress’ 2006 25-year renewal of §5 of the Voting Rights Act, a measure initially enacted in 1965.  Under the Act, nine States, seven of them in the South, and some designated areas elsewhere—all with a history of discrimination against minority-group voters—must obtain federal preclearance for any change in voting practices.  The preclearance requirement extends to all local units within the designated States and areas.  To gain preclearance, the applicant must show that the proposed change has neither the purpose nor the effect of “denying or abridging the right to vote on account of race [or ethnic origin].”

            Eight days after Congress’ latest reauthorization of the Voting Rights Act, a small municipal utility district in Travis County, Texas, formed in the late 1980s, filed suit in federal court.  Alleging that it never engaged in discriminatory voting practices, the utility district sought a statutory exemption from §5’s coverage—a release from the obligation to preclear called a “bailout.”  If “bailout” is not available to it, the utility district alternatively argued, then the 2006 Voting Rights Act reauthorization exceeds Congress’ power to enforce the Fourteenth and Fifteenth Amendments.  Congress passed the reauthorization Act by overwhelming majorities in both Houses.  A three-judge federal district court in D.C., stressing the deference due to Congress, rejected the utility district’s arguments and upheld the Act.  What the Supreme Court will do with the case remains to be seen.

            The Second Circuit ranked high on our grant list this Term.  We granted review in nine cases from the Circuit and have so far decided six.  The first four to come out yielded 5-4 decisions reversing the Court of Appeals.  In all four, I was among the dissenters.  In the two cases most recently decided, the Court affirmed the Circuit’s judgment.

            Two of the reversals issued on the same, perhaps fitting, day—April 1.  One of the two, Entergy Corp. v. Riverkeeper, Inc., involved a section of the Clean Water Act specifying that standards governing cooling water intake structures must “reflect the best technology available for minimizing adverse environmental impact.”  Several States and environmental groups challenged as unduly lax the performance standards EPA set for these structures.  Concluding that the statute did not permit the EPA to use cost-benefit analysis, the Second Circuit remanded the matter to the agency for clarification whether the EPA had relied on that analysis.  The Supreme Court held that the statute reasonably could be read to allow cost-benefit balancing.  Justice Stevens, lead dissenter, thought the Second Circuit had gotten it right.  He criticized the majority for diluting the strength of Congress’ “best technology available” instruction.

            Second of the April 1 decisions, 14 Penn Plaza LLC v. Pyett, concerned a collective-bargaining agreement provision that required union members to arbitrate claims arising under the Age Discrimination in Employment Act.  Relying on a pathmarking 1974 Title VII decision, Alexander v. Gardner-Denver Co., the District Court and, in turn, the Court of Appeals, held that a collective-bargaining agreement could not waive covered workers’ rights to a judicial forum for claims Congress created.  The Supreme Court’s reversal shrunk Gardner-Denver to a petite size.  Justice Souter, writing for the dissenters, explained why our 35-year-old precedent remained sound and should have controlled the 14 Penn Plaza case.

            FCC v. Fox Television Stations, Inc., decided at the end of April, was, I thought, a case that should never have gotten off the ground.  The Court upheld the FCC’s 2004 determination that the broadcast of isolated utterances of the F- or S-Word could be condemned as indecent under federal law.  The Second Circuit set aside the agency’s disposition as arbitrary and capricious under the Administrative Procedure Act.  As a postscript, the Court of Appeals expressed doubt that the FCC’s current “fleeting expletives” regime could survive First Amendment inspection.

            The Supreme Court reversed, holding that the FCC had adequately explained its new policy.  Because the Court of Appeals had not ruled on the constitutionality of the FCC’s orders, the Court declined to address that issue.  Justice Breyer wrote the principal dissent, which essentially agreed with the Second Circuit’s analysis.  In a separate dissent, I noted “the long shadow the First Amendment casts over what the Commission has done.”  Justice Brennan, I recalled, had warned over 30 years ago that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.”  (The words were spoken in the argument before the Court of Appeals, I’m told.  But the lawyers were alerted that some of the Justices might find that unseemly, so only the letters F and S were used in the Supreme Court.)

            In mid-May, the Court reversed the Second Circuit for a fourth time.  The case, Ashcroft v. Iqbal, was initiated by a Pakistani Muslim, arrested on criminal charges in the wake of 9/11 and held under highly restrictive conditions in Brooklyn’s Metropolitan Detention Center.  As plaintiff in a Bivens action, Iqbal sued numerous federal officers, alleging that his harsh treatment carried out a discriminatory policy under which he was designated a person “of high interest” solely because of his race, religion, or national origin.

            Former Attorney General Ashcroft and FBI Director Mueller, both named defendants, sought threshold dismissal based on their qualified immunity defense.  Disagreeing with the District Court and the Court of Appeals, the Supreme Court held Iqbal’s pleadings insufficient to state a claim for relief against Ashcroft and Mueller.  The majority opinion and Justice Souter’s dissent variously interpreted the Court’s 2007 decision in Bell Atlantic Corp. v. Twombly.  Under Twombly, a plaintiff must “allege facts” that, taken as true, state a “plausible” basis for relief.  District Judge Gerard Lynch was the initiator of what became the Twombly plausibility standard, and perhaps he can tell us which side got it right.  (In my view, the Court’s majority messed up the Federal Rules.)

            Justice Breyer dissented separately in Iqbal to underscore a key point made by the Second Circuit: When a Government defendant asserts qualified immunity, the trial court responsible for managing the case “can structure discovery in ways that diminish the risk of imposing unwarranted burdens upon [high level] public officials.”

            On June 8, the Court broke the string of reversals by affirming the Second Circuit twice. United States, we held, 7-2, that an association-in-fact enterprise under RICO requires no organizational structure beyond the defendant’s predicate acts.  And in United States ex rel. Eisenstein v. City of New York, we held, unanimously, that a qui tam plaintiff not joined by the Government has the usual 30 days, not the Government’s 60 days, to file a notice of appeal.

            Three cases from the Second Circuit await decision.  The backdrop for one of those cases, Travelers Indemnity Co. v. Bailey, is the 1986 Johns-Manville bankruptcy plan, entered to relieve Johns-Manville from crushing asbestos liability.  At issue is an attempt by Travelers, Johns-Manville’s primary insurer, to enjoin recent lawsuits against it and other insurers for conduct relating to their coverage of asbestos manufacturers.

            Next, Cuomo v. Clearinghouse Association, L. L. C. concerns a provision of the National Bank Act limiting the States’ exercise of visitorial powers over national banks.  Interpreting this provision, the Office of the Comptroller of the Currency adopted a regulation prohibiting States from enforcing against national banks federal or state laws governing banking activities.  The Comptroller invoked this regulation to gain a federal-court injunction against New York’s Attorney General when that officer attempted to investigate national banks’ lending practices for violations of state and federal antidiscrimination laws.  The Second Circuit affirmed the injunction in principal part, holding that the Comptroller’s regulation reasonably interpreted the ambiguous term “visitorial powers.”

            Finally and foremost in importance, Ricci v. DeStefano concerns the City of New Haven’s decision not to certify the racially skewed results of a promotional exam for firefighters.  Ricci and his fellow plaintiffs, mostly white, performed well.  Most African-American and Hispanic test-takers scored low.  The City asserted that, if it certified the test results, it would be vulnerable to a Title VII disparate-impact suit: Disappointed minority firefighters would target the examination’s failure to identify, and accurately test for, skills most relevant to leadership posts.  Ricci, on the other hand, sees the City’s refusal to certify the test results as a clear case of reverse discrimination, prohibited by Title VII and the Equal Protection Clause.  New Haven prevailed on summary judgment in the District Court and the Second Circuit affirmed, relying on the opinion of District Judge Arterton.  The Supreme Court’s decision, one can safely predict, will be among the last to come out this Term.

            In addition to the nine Second Circuit cases the Court heard this Term, we reviewed 15 cases raising questions on which the Second Circuit had issued an opinion.  We agreed with the Second Circuit in seven6 and disagreed in four,7 among them, Vaden v. Discover Bank, described earlier.  One of the four still to be decided8 is Forest Grove School District v. T. A.  That case raises a question that divided the Court 4-4 last Term when we considered the Second Circuit’s decision in Board of Education of City School District of New York v. Tom F.  The question presented: Under the Individuals with Disabilities Education Act, may parents gain reimbursement for private school tuition when their child had not previously received special education in a public school?

            For next term, we have already granted petitions in three cases from the Second Circuit.  First, in Reed Elsevier, Inc. v. Muchnick, we will consider whether federal courts have subject-matter jurisdiction over copyright infringement class actions when some members of the class have not registered their copyrights.  Second, the petition in Hemi Group, LLC v. City of New York asks whether the City can meet RICO’s standing requirement by alleging injury resulting from nonpayment of taxes.  And third, Shady Grove Orthopedic Associates v. Allstate Insurance Co. presents an issue procedure teachers will follow with rapt attention: May a state legislature forbid recourse to class actions for claims arising under state law but filed as diversity cases in federal courts.

            My report on the 2008-2009 Term is now done and I invite Judge Livingston and Judge Kravitz to join me in conversation.

1 Two cases have been dismissed as improvidently granted.  Bell v. Kelly, 555 U. S. ___ (2008) (per curiam); Philip Morris USA Inc. v. Williams, 556 U. S. ___ (2009) (per curiam)

2 Unanimous Judgment Only: Chambers v. United States, 555 U. S. ___ (2009); Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. ___ (2009); Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. ___ (2009); Pleasant Grove City v. Summum, 555 U. S. ___ (2009); Knowles v. Mirzayance, 556 U. S. ___ (2009); Flores-Figueroa v. United States.

3 Unanimous Opinion: Jimenez v. Quarterman, 555 U. S. ___ (2009); Locke v. Karass, 555 U. S. ___ (2009); Pearson v. Callahan, 555 U. S. ___ (2009); Fitzgerald v. Barnstable School Comm., 555 U. S. ___ (2009); Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan, 555 U. S. ___ (2009); United States v. Eurodif S. A., 555 U. S. ___ (2009); Arizona v. Johnson, 555 U. S. ___ (2009); Van de Kamp v. Goldstein, 555 U. S. ___ (2009); Kansas v. Colorado, 556 U. S. ___ (2009); Rivera v. Illinois, 556 U. S. ___ (2009); Hawaii v. Office of Hawaiian Affairs, 556 U. S. ___ (2009); United States v. Navajo Nation, 556 U. S. ___ (2009); Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U. S. ___ (2009); Abuelhawa v. United States, 556 U. S. ___ (2009); Bobby v. Bies, 556 U. S. ___ (2009); United States ex rel. Eisenstein v. City of New York, ___ U. S. ___ (2009); Republic of Iraq v. Beaty, ___ U. S. ___ (2009).

4 5-4 (Chief Justice + 4): Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___ (2008); Herring v. United States, 555 U. S. ___ (2009); Summers v. Earth Island Institute, 555 U. S. ___ (2009); Bartlett v. Strickland, 556 U. S. 1 (2009); Entergy Corp. v. Riverkeeper, Inc., 556 U. S. ___ (2009); 14 Penn Plaza LLC v. Pyett, 556 U. S. ___ (2009); FCC v. Fox Television Stations, Inc., 556 U. S. ___ (2009); Ashcroft v. Iqbal, 556 U. S. ___ (2009); Montejo v. Louisiana, 556 U. S. ___ (2009)

5 5-4 (Justice Stevens + 4): Altria Group, Inc. v. Good, 555 U. S. ___ (2008); Corley v. United States, 556 U. S. ___ (2009); Haywood v. Drown, 556 U. S. ___ (2009); Caperton v. A. T. Massey Coal Co., ___ U. S. ___ (2009); United States v. Denedo, ___ U. S. ___ (2009).

6 Agree: Kennedy v. Plan Administrator for DuPont Sav. And Investment Plan, 555 U.S. ___ (2009); United Statesv. Hayes, 555 U.S. ___ (2009); Corley v. United States, 556 U.S. ___ (2009); Nken v. Holder, 556 U.S. ___ (2009); Cone v. Bell, 556 U.S. ___ (2009); Arthur Andersen LLP v. Carlisle, 556 U.S. ___ (2009); Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. ___ (2009).

7 Disagree: Fitzgerald v. Barnstable School Comm., 555 U.S. ___ (2009); Vaden v. Discover Bank, 556 U.S. ___ (2009); Puckett v. United States, 556 U.S. ___ (2009); Kansasv. Ventris, 556 U.S. ___ (2009).

8 Undecided: Nijhawan v. Holder, ___ U.S. ___ (2009); Atlantic Sounding Co. v. Townsend, ___ U.S. ___ (2009); Gross v. FBL Financial Services, Inc., ___ U.S. ___ (2009); Forest Grove School Dist. v. T.A., ___ U.S. ___ (2009).