Justice Ginsburg

[Scarberry, Mark]

I don't think there was any rule that the incapacitated Justice's vote wouldn't count, but just an understanding that Justices wouldn't write or sign on to an opinion if the incapacitated Justice's vote would be the necessary fifth vote. That could leave some cases undecided for a while, but that may not be so bad. Of course the understanding wasn't binding, and each Justice would exercise independent judgment in abiding by it.
 
Mark Scarberry
Pepperdine

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Fri 2/6/2009 5:41 AM
To: stevenjamar at gmail.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Ginsburg


Steve Jamar wrote:
 
        "Strikes me as over-the-mark positivist to say that the court can't do anything unless there is positive language in the constitution saying so."
 
        I don't think positivism has anything to do with this issue. In a so-called "limited government" possessing so-called "enumerated powers," I don't think discussion of these issues requires one to take a stance on jurisprudential theories. In any institution unstated practices will inevitably develop.  That hardly means democratic citizens seeking accountability should simply accept whatever the institution does as legitimate.
 
        Consequently, as to a discussion of the internal organization of the Court, including decision-procedures, I can only say such a discussion is a long time overdue. 
 
Bobby
      
Robert Justin Lipkin
Distinguished Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/ <http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ 
 
In a message dated 2/6/2009 8:28:40 A.M. Eastern Standard Time, stevenjamar at gmail.com writes:

	



	On Feb 6, 2009, at 7:54 AM, RJLipkin at aol.com wrote: <http://www.essentiallycontestedamerica.org/> 

		
		[snip]
		 
		        Finally, wherein lies the authority of the Court to decide when an incapacitated Justice's vote should or should not apply.  
		 
		Bobby
		      
		Robert Justin Lipkin
		Distinguished Professor of Law
		Widener University School of Law
		Delaware
		
		
		



	Well, Bobby, if we start down that road, where is the authority for the Court to do just about anything about how it does business or organizes itself internally?  Or even decides things by  majority vote instead of requiring unanimity?

	Strikes me as over-the-mark positivist to say that the court can't do anything unless there is positive language in the constitution saying so.

	Steve

	
	
	
	
	-- 
	Prof. Steven D. Jamar                     vox:  202-806-8017
	Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org <http://iipsj.org/>  <http://www.essentiallycontestedamerica.org/> 
	Howard University School of Law           fax:  202-806-8567
	http://iipsj.com/SDJ/ <http://www.essentiallycontestedamerica.org/> 
	
	
	
	
	"Enduring high school is not the same as growing up Jewish in Prague or fighting in the French Resistance. I had no solid basis for being cool in that existential motorcycle James Dean absurdist chain-smoking hero sort of way, so I gave up being cool and settled for being pleasant."
	
	
	
	Garrison Keillor


	=
	
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