Tribe, Laurence H.

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 Respecting Dissent: Justice Ginsburg’s Critique of theTroubling Invocation of Appearance  (Article begins on next page)The Harvard community has made this article openly available.Please share how this access benefits you. Your story matters.Citation Laurence H. Tribe, Respecting Dissent: Justice Ginsburg’sCritique of the Troubling Invocation of Appearance, in Essays inHonor of Justice Ruth Bader Ginsburg (Feb. 4, 2013) (on file withthe Harvard Law School Library).Accessed February 19, 2015 11:55:52 AM ESTCitable Link http://nrs.harvard.edu/urn-3:HUL.InstRepos:10582565Terms of Use This article was downloaded from Harvard University's DASHrepository, and is made available under the terms and conditionsapplicable to Open Access Policy Articles, as set forth athttp://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP6Respecting Dissent:Justice Ginsburg’s Critique of the  Troubling Invocation of AppearanceLaurence H. TribeCarl M. Loeb University ProfessorJustice Ginsburg is alone on the Court in resisting the pro forma flourish of declaring respect for majority opinions that she carefully demolishes, but she neither shrinks from voicing dissent nor does so casually. It is the care with which she decides when to disagree, and the precision with which she expresses disagreement, that bespeaks the respect for her col-leagues and the institution that others sometimes honor only in form. I focus here on Justice Ginsburg’s dissents in two cases, Baze v. Rees and Gonzales v. Carhart, to show how she selects and frames her departures from majority judgments. My aim is to expose the way the majorities in this pair of cases too casually invoked appearances to justify their hold-ings—and the way Justice Ginsburg used her role as a dissenter to under-mine the legitimacy of that reckless judicial methodology.  Baze, as Justice Ginsburg forcefully demonstrates, indefensibly cast aside the availability of alternative lethal injection monitoring procedures as a relevant factor in Eighth Amendment analysis.4 And Carhart, as she makes plain, departed without justification from the Court’s previously consistent demand, rooted in “a woman’s autonomy to determine her life’s course,” that a health exception be included in any abortion restric-tion.5 In both cases, a particularly troubling feature of the majority’s con-clusion was a much too casual willingness to sacrifice important rights for the sake of preserving appearances.  Regulation for the sake of appearances occupies a place of great com-plexity in constitutional discourse. So, for instance, the way government 64labels some conduct as criminal might do constitutionally cognizable harm by stigmatizing some groups in society for no better reason than that it deems them less worthy than others.6 Or, the way government elevates some symbols for public celebration might offend constitutional principles by signaling its endorsement of certain religious beliefs.7 More rarely, otherwise problematic government actions might be saved by at-tention to how things appear—like insisting on a jury trial for a defendant whose unpopularity might have made a bench trial fairer,8 or restricting the role of money in politics to avoid the self-reinforcing impression that those who wield political power depend more on their funders than on their constituents.9  But such appearance-based defenses are uniquely difficult to corrobo-rate and uniquely tempting to accept. Lest they become trumps too easily played in constitutional argument, courts must scrutinize their deploy-ment with great care to ensure that they are not just post hoc rational-izations or excuses for deceiving the public0 and do not in fact serve to conceal serious constitutional violations.  Justice Ginsburg’s dissents in Carhart and Baze represent small—but important—steps in developing such scrutiny of appearance-based argu-ment. In Baze, the Court had accepted the state’s defense of including a new drug in its lethal injection protocol despite the drug’s risk of inflict-ing immense pain unless properly administered, because the drug sup-pressed involuntary movements and, therefore, preserved the “dignity” of the procedure while ensuring that viewers would not erroneously mistake spasms for signs of pain. But of course those spasms could instead accu-rately signal excruciating suffering, and in any event, as Justice Ginsburg noted in her meticulous dissent, the appearance argument provided no excuse for failing to employ various safety checks to protect against mis-takes if the drug was to be used at all. In  Carhart, the Court rested in part on the degree to which the “partial birth” abortion procedure Congress outlawed resembled infanticide and might thus jeopardize public confidence in the medical community.4 Not only was this appearance argument hard to test empirically but, as 65Justice Ginsburg noted in her dissent, not even Congress had treated it as weighty enough to justify overriding constitutional rights: other late-term methods of terminating pregnancy by delivering an intact fetus that appear no less brutal had been left untouched.5  Few will remember the Court’s partial reliance upon appearance jus-tifications in Baze and Carhart without recalling their gripping and pre-cise refutation in Justice Ginsburg’s dissenting opinions. By depriving defenses based on appearances of the cumulative weight of unexamined endorsement, Justice Ginsburg’s opinions in this pair of life-and-death cases demonstrate the quiet power of cautious dissent.mEndnotes    From Consensus to Collegiality: The Origins of the “Respectful” Dissent, 4 Harv. L. Rev. 05, 4 (0).    Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 85, 94 (99).    See Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. , 4-44 (990).  4  Baze v. Rees, 55 U.S. 5, 4 (008).  5  Gonzales v. Carhart, 550 U.S. 4, 7-7 (007).  6  See, e.g., Lawrence v. Texas, 59 U.S. 558, 574-76, 578-79 (00).  7  See, e.g., County of Allegheny v. ACLU Greater Pittsburgh Chapter, 49 U.S. 57, 66-7 (O’Connor, J., concurring) (989).  8  See Singer v. United States, 80 U.S. 4, 5-6 (965); see also United States v. Sun Myung Moon, 78 F.d 0, 8 (d Cir. 98).  9  See generally  Lawrence Lessig, Republic, Lost (0);  see also Lawrence Lessig, A Reply to Professor Hasen, 6 Harv. L. Rev. F. 6 (0).  0  See Fyodor Dostoyevsky, The Brothers Karamazov 75 (“The Grand Inquisitor”) (Constance Garnett, trans., World Classics 0) (880).66    Baze, 55 U.S. at 57-58.    See id. at 7 (Stevens, J., concurring in the judgment).    Id. at  (Ginsburg, J., dissenting).  4  Carhart, 550 U.S. at 58-59.  5  Id. at 8 (Ginsburg, J., dissenting).

Respecting Dissent: Justice Ginsburg’s Critique of the Troubling Invocation of Appearance

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Respecting Dissent: Justice Ginsburg’s Critique of the Troubling Invocation of Appearance

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