Celebration of the Tenth Anniversary of Justice Ruth Bader Ginsburg's Appointment to the Supreme Court of the United States
It is an honor to participate in celebrating Justice Ginsburg's tenth anniversary on the Court. She is ajustice whom I admire on many fronts; moreover, she continues to be a vital part of this school as this Symposium itself attests. But an invitation to participate also presents a challenge: This session is about her and her contributions to various aspects of the Court's jurisprudence. I know Justice Ginsburg well enough to believe that nothing would cause her more discomfort than to be in an audience with herself as the sole topic. So I thought that my remarks should be both about her, and not about her. What to do? An inspiration: Why not talk about Great-West, an ERISA (Employee Retirement Income Security Act) decision in which she wrote for a minority of four and Justice Scalia wrote for the Court.1 This may strike you as a mind-boggling idea. Other than tax cases, what set of Supreme Court decisions could be less interesting? Indeed, rumor has it that one well-known reason for recommending denial of certiorari is that "this is an ERISA case." But Great-West turns out to be the most recent expression of what has been an ongoing and important debate between Justice Scalia and Justice Ginsburg on the meaning of original understanding, particularly when the Constitution or statutes refer to common law institutions.