Symposium: Procedural equality in Ginsburg’s legal justice choices

Ginsburg announces new cancer treatment

Posted Oct 1st 2020 at 11:00 am by Lisa Kern Griffin

This article is part of a symposium on the case law of the late judge Ruth Bader Ginsburg.

Lisa Kern Griffin is Professor of Law at Duke University with Candace M. Carroll and Leonard B. Simon and author of Barriers to Entry and Justice Ginsburg's Criminal Procedure Jurisprudence.

Justice Ruth Bader Ginsburg's promotion of equality defined her contributions as a lawyer and judge. Though less celebrated, some of their criminal justice decisions expressed a related commitment to fairness and access. She stressed the right of the defendants to participate fully in the controversial process, to have adequate legal assistance and to deny the government's overreach.

Most of Ginsburg's decisions in this area focus on removing barriers to fair consideration. Their criminal trial jurisprudence included opinions that reshaped the right to question government witnesses and enabled judges to mitigate the harsh differences in conviction in crack cocaine cases. She also provided the instrumental voices to deliberate federal condemnation guidelines and expand the jury's findings on factual judgment.

Ginsburg believed in the proverbial “day before court”. And it assessed the quality and availability of legal assistance to defendants in need in order to uphold their right to be heard. It condemned the "systemic collapse of the public defense system" in several decisions, including Maples v Thomas. Their opinion on this case exposed the shortcomings of the Alabama public defense system in capital cases. Given the inequalities, she found no procedural error in a defendant's claim as the abandonment of his lawyer caused the missed deadline. She also authored Alabama Against Shelton, which extended legal counsel to offenses that could lead to suspended sentences. Since the state should never "bolt the door to equal justice," it added the sixth amendment to the appeal to review convictions resulting from confession of guilt.

In criminal investigations, Ginsburg also looked for counterweights to the government's advantage, and she demonstrated her longstanding commitment to fair play. In Perry v New Hampshire, it concluded that due process did not always require reliability hearings for the identification of eyewitnesses, but that "law enforcement-arranged suggestive circumstances" would be subject to special scrutiny. Potential end-runs on constitutional rules often caught her attention, and she was disturbed by police-induced emergencies that were able to take advantage of the urgency exemption from the fourth amendment requirement and narrow notions of "custody" that it Enabling law enforcement not to give Miranda warnings and relying on anonymous tips to justify stops and frisks.

Perhaps Ginsburg's strongest objection to the unequal competitive conditions in the criminal justice system concerned the prosecutors' trial obligations. Connick v. Thompson embroiled a defendant denied access to exculpatory evidence, wrongly convicted and jailed for 18 years, and then given $ 14 million civil trial by a jury for calling the New District Attorney Orleans sued for violation of its constitutional rights. Ginsburg contradicted the court's 5-4 decision overturning the jury's verdict, stating that the prosecutor had only committed a "single incident of wrongdoing" in withholding material evidence in violation of Brady v. Maryland. Their dissent includes a careful recitation of the facts and the record of the trial, which constitutes a "gross, willfully indifferent and prolonged violation" of the defendant's right to a fair trial.

Ginsburg read her staunch dissent from Connick at the bank, as she often did when she hoped to speak to a future age and a better time. In that, she sounded similar to her "most notorious" dissidents in Ledbetter versus Goodyear and Shelby County versus Holder. She noted procedural inequality in a prosecutor's denial of appeal against unconstitutional suppression of exculpatory evidence, just as she did when Lilly Ledbetter's claim for discrimination expired before Ledbetter was aware of wage differentials, and, as with the termination of electoral protection, developed discriminatory exclusions in areas with a history of discrimination.

Ginsburg's elegant and essential argument that each individual deserves the full right to participate is cross-context and forms the core of his intellectual legacy. She trusted institutions and relied on procedural conventions, but she also spent her life fighting unfair headwinds and protecting others from them. And it has applied the same principle of equality to its decisions about access to criminal proceedings.

Posted in Featured, Symposium on the Jurisprudence of Justice Ginsburg

Recommended citation:
Lisa Kern Griffin,
Symposium: Equality of procedure in Ginsburg's criminal decisions,
SCOTUSblog (October 1, 2020, 11:00 a.m.),