Justice Ginsburg

[Janet Alexander]

Another question is, what happens when a Justice is unable to attend 
the oral argument but is back at court when the case is 
decided?  When I clerked the understanding was that a justice who 
couldn't be present for oral argument would not participate in the 
decision.  The idea was that oral argument should at least be treated 
as though it is important.  I believe that rule was breached in 
recent times, I believe by conservative justice(s).

At 01:05 PM 2/6/2009, Scarberry, Mark wrote:
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>
>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/
>Essentially Contested America, Editor-In-Chief 
><http://www.essentiallycontestedamerica.org/>http://www.essentiallycontestedamerica.org/ 
>
>
>In a message dated 2/6/2009 8:28:40 A.M. Eastern Standard Time, 
>stevenjamar at gmail.com writes:
><http://www.essentiallycontestedamerica.org/>
>
>
>On Feb 6, 2009, at 7:54 AM, 
><mailto:RJLipkin at aol.com>RJLipkin at aol.com<http://www.essentiallycontestedamerica.org/> 
>wrote:
>>[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
>
>--
><http://www.essentiallycontestedamerica.org/>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://iipsj.com/SDJ/
>
>
>"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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