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This week, while the Supreme Court was in recess, Justice Ginsburg spoke at Stanford University, delivering the 2017 Rathbun Lecture on a Meaningful Life. Ginsburg addressed topics including the importance of collegiality at the Court, her desire to change the Electoral College and her criticism of the death penalty, and what it means to lead a meaningful life. “I tell the law students I address now and then, if you’re going to be a lawyer and just practice your profession, well, you have a skill, so you’re very much like a plumber. If you want to be a true professional, you will do something outside yourself,” Ginsburg stated. “Something to repair tears in your community. Something to make life a little better for people less fortunate than you. That’s what I think a meaningful life is – living not for oneself, but for one’s community.”
On Tuesday, a three-judge panel from United States Ninth Circuit Court of Appeals heard arguments from attorneys for the state of Washington and the U.S. Department of Justice about President Trump’s Executive Order mandating a travel ban affecting seven Muslim-majority countries and refugees. The parties argued over whether a federal judge’s temporary restraining order precluding enforcement of the order, should be stayed. On Thursday, the Ninth Circuit issued an opinion refusing to stay the TRO. It did not reach all of the issues presented in the case, however, and it set a briefing schedule for fuller consideration.
Before the Ninth ruled, Adam Liptak of the New York Times argued that the issue will likely end up before the Supreme Court, but the decision from the Ninth Circuit might have the ultimate impact. He explained, “[n]o matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.” As of this writing, less than 24 hours after the Ninth Circuit decision, the federal government has not asked for Supreme Court intervention, and there are reports that the administration is considering rewriting the Executive Order.
The audio from the Ninth Circuit hearing was streamed live on Youtube and on CNN and MSNBC, with more than 137,000 people listening to the Youtube broadcast. Timothy McLaughlin from Reuters reports that around 2.6 million people tuned into the broadcast either online or on a news network. The hearings were conducted across a conference call, meaning only the audio could be broadcast; McLaughlin writes, “the lack of visuals did not scare away those interested – and even led some to liken the experience to huddling around a radio in the pre-TV era.”
That President Trump has been vocal in his dissatisfaction with the court rulings on his Order and has been disparaging of the judges and courts is affecting the confirmation process for Supreme Court nominee Judge Neil Gorsuch. In a meeting with Sen. Richard Blumenthal (D-CT) on Wednesday, Judge Gorsuch reportedly stated that Trump’s recent criticism of the judiciary, stemming from the stay on his executive order, was “demoralizing and disheartening.” The White House, however, has denied that these statements referred directly to the President, and Judge Gorsuch has not spoken publicly.
Julie Hirschfeld Davis of the New York Times argues that Gorsuch’s comments serve to emphasize the importance of the peculiar tension between Trump and the judiciary, writing, “The spectacle of a Supreme Court nominee breaking so starkly with the president who named him underscored the unusual nature of Mr. Trump’s public feud with the judiciary.” She goes on to say that “Mr. Trump’s rhetorical battle with the judiciary may also end up harming his cause in a case that may end up before the Supreme Court, by potentially stiffening the resolve of judges who feel their independence is under attack.” On the other hand, Rick Hanson at the Electoral Law Blog argues that Gorsuch’s statements were more of a strategic move made to secure his confirmation.
Finally, in an op-ed for the Washington Post, Jason Murray argues that liberals should resist the impulse to reject Gorsuch because he has “a fierce commitment to the rule of law”, is “remarkably similar. . .to Supreme Court Justice Elena Kagan,” and that “[t]his zeal for the rule of law gives. . . every confidence that Gorsuch, like Kagan, will stand firm against any effort by the Trump administration to abuse executive power.”
For more on the Gorsuch nomination, check out ISCOTUSnow’s Gorsuch Report on Wednesdays.