AS OUR PERIL AND THAT SHE
EXCEEDED EVEN HIS VERY HIGHEST
EXPECTATIONS.
ALICIA: AND LELAND, WE’LL
CONTINUE TO COVER THE LEDGEDY
OF JUSTICE GINSBURG AND LOOK TO
THE FUTURE AND FOR MORE ON HER
LEGACY AND WHAT LEGACY AND WHAT
THIS ABSENCE MEANS ON THE
COURT.
WE ARE NOW JOINED BY SENIOR
FELLOW AT KING’S COLLEGE AND
CONSTITUTIONAL LAW EXPERT MARK
SMITH AND LAW PROFESSOR AT
UNIVERSITY OF MEMPHIS WHO
TEACHES CONSTITUTIONAL LAW AND
ELECTION LAW, STEVE MULROY.
THANK YOU FOR BEING HERE.
AND MARK, LET’S BEGIN WITH YOU,
I’D FIRST LIKE TO GET YOUR
THOUGHTS ON THE PASSING OF
JUSTICE GINSBURG.
>> WELL, RUTH BADER GINSBURG IS
AN AMERICAN ICON.
HER GREATNESS IS UNDENIABLE.
EVEN IF YOU DISAGREE WITH HER
JUDICIAL PHILOSOPHY AND HER
APPROACHES TO MAKING DECISIONS
AND EVEN IF YOU DISAGREE WITH
THAT, YOU CANNOT DENY HER
IMPORTANCE ON AMERICAN LAW, HER
WRITINGS, HER LECTURES, HER
DECISIONS WILL BE STUDIED BY
LAWYERS, BY JUDGES, AND BY LAW
STUDENTS, FAR INTO THE FUTURE.
AND EVEN STUDIES BY THOSE WHO
MAY HAVE DISAGREED WITH HER
APPROACHES TO JURISPRUDENCE,
SHE’S NO DOUBT A LEGAL TITAN
THAT WILL LONG BE REMEMBERED.
ALICIA: STEVE, YOUR THOUGHTS ON
HER LEGACY AND THAT THE IMPACT
THAT THE NATION WILL FOREVER
FEEL.
>> I AGREE WITH EVERYTHING THAT
MARK JUST SAID.
SHE WILL BE REMEMBERED FOR
GENERATIONS AND I TEACH A LOT
OF HER OPINIONS IN MY
CONSTITUTIONAL LAW CLASS.
I THINK SHE CAN BE REMEMBERED
NOT ONLY FOR THE OPINIONS THAT
SHE WROTE ON THE BENCH AND SOME
OF OTHER POWERFUL DISSENT FROM
THE BENCH, BUT ALSO AS AN
ADVOCATE IN THE YEARS LEADING
UP TO HER ACCESSION TO THE
SUPREME COURT WHERE SHE
BASICALLY LED THE LEGAL CHARGE
FOR WOMEN’S RIGHTS.
BASICALLY, THE THURGOOD
MARSHALL OF THE WOMAN’S RIGHTS
MOVEMENTS AND BOTH THROUGH HER
ADVOCACY AND THROUGH HER
OPINIONS, SHE SET THE LEGAL
STANDARD THAT NOW APPLY WHEN IT
COMES TO ANY DISCRIMINATION ON
ANY PARTY, ALONG THE LINES OF
GENDER AND ANY OTHER GROUND AS
WELL.
SHE REALLY IS ICON AND WILL BE
REMEMBERED FOR A LONG TIME.
>> AND I WANT TO TAKE A LOOK AT
THE LEGAL LANDSCAPE HERE
BECAUSE THE JUSTICES RIGHT NOW
ARE IN RECESS AND THERE ARE
SOME MAJOR CASES STILL YET TO
BE HEARD BY THE SUPREME COURT
OF THE UNITED STATES AND I’M
JUST GOING TO PUT UP THE LIST
HERE OF SOME OF THE MAJOR CASES
HERE, YOU HAVE PRADER VERSUS
BARR, GOOGLE HLLC VERSUS ORACLE
AMERICAN INC. AND TANZEN VERSUS
TANZIER.
I HOPE I’M PRONOUNCING THAT
RIGHT.
WE HAVE A 4-4 COURT NOW.
AND WHAT CASE STANDS OUT AS
PARTICULARLY--
AND IT’S ONE A THAT WE SHOULD
BE PAYING ATTENTION TO.
>> THEE CASES WITH THE GRAND
SCHEME, ALTHOUGH THEY ARE
IMPORTANT TO THE PARTIES
INVOLVED, ON THE GRAND SCHEME
OF CONSTITUTION OF AMERICA,
THEY’RE NOT PARTICULARLY
IMPORTANT CASES, THEY’RE NOT
LIKE A GUN RIGHTS CASE OR A
CASE INVOLVING, LET’S SAY,
ABORTION RIGHTS.
THEY’RE LESS SIGNIFICANT IN THE
CONSTITUTION SCHEME.
AS A CONSEQUENCE, I SUSPECT
WHWHEN YOU LOOK AT CASES THAT AR
NOT OF AS GRANDIOSE, IF YOU
WILL, AS SOME OF THESE OTHERS,
YOU TEND TO FIND NOT 4-4
SPLITS.
YOU TEND TO SEE DECISIONS THAT
COME OUT 7-2 OR 8-1 AND I THINK
THERE’S A GOOD CHANCE ON THE
FOUR CASES YOU’RE NOT GOING TO
HAVE WORRY ABOUT, LET’S SAY, A
TIE.
BEAR IN MIND IT IF YOU DID HAVE
A TIE WHEN THE JUSTICES GO IN
TO VOTE, WHAT WOULD USUALLY
HAPPEN IN THAT SITUATION, THEY
WOULD WAIT FOR ANOTHER JUSTICE
TO JOIN THE COURT AND THEN THEY
WOULD RESCHEDULE ORAL ARGUMENT
AGAIN.
THEY WOULD HAVE ANOTHER
ARGUMENT AND INTERNALLY WITH
THE ODD NUMBER OF JUSTICES,
THAT’S WHAT WOULD HAPPEN WITH
ANY OF THE CASES YOU DISPLAYED
ARE BASICALLY TIED AT 4-4.
STEVE, DO YOU AGREE WITH THAT
THAT THEY MAY JUST WAIT ON SOME
OF THESE?
IS THERE ANYTHING THAT STANDS
OUT TO YOU?
>> THEY MAY VERY WELL WAIT.
OR SOMETIMES, YOU KNOW, YOU CAN
HAVE A TIE AND THAT’S ALL
RIGHT, IT JUST MEANS THAT THE
LOWER COURT DECISION STANDS.
YOU MAY NOT HAVE HAD AS MANY
TIES AS YOU MIGHT THINK BECAUSE
TO THE EXTENT THAT ANY OF THESE
CASES SORT OF SPLIT ALONG
IDEOLOGICAL LINES, WHILE WE
MIGHT NOW HAVE A SORT OF 5-3
SPLIT AMONG CONSERVATIVES AND
LABOR LIBERALS ON THE COURT.
SOME OF THE CASES YOU MENTION
ARE NOT CONSTITUTIONAL CASES.
THE ONE THAT’S PROBABLY THE
MOST SIGNIFICANT IS NOT
CONSTITUTIONAL CASE IS GOOGLE
VERSUS ORACLE CASE WHICH COULD REALLY SET UP THE STANDARD FOR,
REALLY SET UP THE STANDARD FOR,
YOU KNOW, WHEN WE HAVE INTER
INNOVATION.
ALICIA: THE TECH AREA WOULD
WATCH THAT ONE.