Supreme Court Justices can become influential in different ways. Some have the good fortune to belong to the ideological faction that is winning important cases; today, Samuel Alito fits this description. Others use their positions in the majority to write separate opinions urging the Court to take even more dramatic steps in the same direction; Scalia and Clarence Thomas play this part. Others embrace the role of dissenter, as Brennan and Marshall did toward the end of their careers. Perhaps the most desirable role is that of the swing Justice, who can control the outcome of cases and thus also win the assignment of writing important majority opinions. O’Connor and, more recently, Anthony Kennedy embraced this opportunity with gusto.
Ginsburg fits into none of these categories. Indeed, her reputation as the Thurgood Marshall of the women’s-rights movement exceeds her renown as a Justice. (Marshall had a similar problem once he reached the Supreme Court: too many conservative colleagues.) Unlike Marshall, Ginsburg has responded to this dilemma with restraint rather than outrage. Jamal Greene, of Columbia Law School, said, “She has a sense of herself as a member of a court, a member of a body that has a particular governmental function, not of herself as a person like Scalia and Thomas, who see themselves as free agents in each case.”
But Ginsburg’s frustrations have grown over the years. She got along well with William Rehnquist, the late Chief Justice. In United States v. Virginia (1996), Rehnquist assigned her the most important majority opinion of her career, and she ordered the Virginia Military Institute to admit women cadets, vindicating arguments she had made as a lawyer two decades earlier. “I was very fond of the old Chief,” Ginsburg told me. As for his successor, Roberts, Ginsburg offered this faint praise: “For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.”
The question of friendships among the Justices may be of only modest importance. They operate independently. They don’t trade votes. They tend to be fastidiously respectful of one another. They do not linger in one another’s offices; they rarely choose to spend much time together away from the Court. Ginsburg and Scalia, fellow opera buffs, are often described as close friends, and their families spent many New Year’s Eves together. But, outside the rarefied world of the Court, the two Justices appear more aptly described as friendly.