In celebration of Women’s History Month, WAVe—Venable’s affinity group for women lawyers—welcomed Amanda Tyler to our Los Angeles office to discuss her work with the late Supreme Court Justice Ruth Bader Ginsberg and share her insights into the changing dynamics of the Supreme Court.
Tyler is a professor at UC Berkeley. She previously served as law clerk to Ruth Bader Ginsburg and collaborated with the late justice on a book about her legacy, Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union. Reflecting on her tenure working for Ginsburg in the 1999 term, Tyler highlighted several notable changes in how the Court functions today and reminisced about the most important lessons.
Changes in How the Supreme Court Functions
Tyler discussed how, in the 2022 term, only 57 signed opinions were issued, compared with 141 decisions in the 1982 term. This falloff in the number of cases being decided in recent Court terms is particularly significant because it had not previously dropped below 60 decisions in any term since Reconstruction.
Tyler highlighted the Court’s recent increase in use of the Shadow or Emergency Docket to decide cases well outside its traditional scope of last-minute death penalty appeals. In the 2021 term, the Court granted 24 applications for emergency relief, a move criticized for deciding substantial matters without full briefing or argument. The Court has also increasingly begun deciding cases in the posture of "cert before judgment," a practice that involves leapfrogging from the District Court directly to the Supreme Court. Among the high-profile cases being granted cert before judgment is last term’s student loan case, Biden v. Nebraska.
Another trend Tyler discussed was the extent to which the court is divided along partisan lines—with an increasing number of cases being decided along a six-three or five-four split. This trend, she noted, is in sharp contrast to previous decades, where unanimity was far more common. Beyond voting patterns, the Court is also divided in other ways, with justices publicly disparaging each other’s decisions and engaging in aggressive exchanges within their respective majority and dissenting opinions. “The increasing visibility of these internal disputes has prompted concerns about the institution’s cohesion and reputation,” Tyler said, “and indicates a notable change in the Court’s functioning.” Finally, Tyler noted a significant shift in the Court's dynamics with three justices—Roberts, Kavanaugh, and Barrett—emerging as the most influential figures, collectively contributing to the majority in over 90% of cases decided in the last term.
Lessons Learned from Ruth Bader Ginsberg
Tyler shared many of her experiences working with Ruth Bader Ginsberg and the lessons she learned from the late justice. She emphasized Justice Ginsburg’s commitment to the extension of constitutional rights and protections to previously excluded groups and her understanding of the real-life impact of court decisions. This understanding was evident in Ginsburg’s opinions in the Lily Ledbetter cases, which centered on pay discrimination against women in the workplace, and the Virginia Military Institute (VMI) case, which revolved around the institute’s male-only admission policy.
Another lesson Tyler learned from Justice Ginsburg is the value of engaging with dissenting perspectives, exemplified by her deep and abiding friendship with her ideologically opposed colleague, the late Justice Scalia. Despite differing interpretations of the Constitution, they shared a genuine camaraderie rooted in mutual respect and common interests. She reflected that Scalia's dissent in the VMI case challenged Ginsburg's stance, prompting her to refine her arguments and produce a stronger majority opinion.
Ginsburg also taught Tyler to “do the work,” play the long game, and “find the right life partner.” She noted that Ginsburg's rigorous work ethic, demonstrated through meticulous review and refinement of legal drafts, instilled a commitment to excellence in all of her clerks. Ginsburg’s focus on the long game was reflected in the dissenting opinions she wrote with an eye on the future. For instance, the justice’s experience with the Wertheimer case in the 1970s, where gender disparities in public high schools were upheld, paved the way for victory in the VMI case two decades later. And finally, Ginsburg’s marriage to Marty Ginsburg, a relationship characterized by mutual support and admiration, was a key factor in the late justice’s extraordinarily successful career. “When I asked her what she would say to students looking to achieve work-life balance, she told me, ‘Choose a partner who thinks your work is as important as theirs.’ It’s a lesson I have taken to heart,” Tyler said.
Learn more about WAVe’s programming and activities.