Abbe R. Gluck & Anne Joseph O’Connell
90 Geo. Wash. L. Rev. 1532
Justice Ginsburg was not usually a doctrinal revolutionary when it came to the fields of administrative law and civil procedure. Her adherence to precedent and careful attention to the proper division of labor among the branches restrained the Justice when confronted with modern doctrines of administrative deference and the creative use of class actions to address nationwide injuries. She also loved black-letter procedure: the strong confines of the Federal Rules, the domains in Congress’s control, and the benefits derived from well-honed, careful doctrinal moves. But sometimes, she met the moment, and took a leap. Whether it was providing regulatory beneficiaries access to the courts or striving to modernize the Court’s personal jurisdiction doctrine, a Justice loyal to doctrinal orthodoxies was, every once in a while, someone we might call “the unorthodox RBG.”
In administrative law, she was not an early adherent to agency deference in statutory interpretation: The Supreme Court unanimously reversed then- Judge Ginsburg in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Even as Justice Ginsburg came to align herself with Chevron’s proponents, she saw an active role for the courts in safeguarding Congress’s power over agencies. Her deference typically paired a belief in the expertise of agencies with a real-world understanding of hard policy problems that she viewed agencies were better able than courts to address. She did not, however, hesitate to question “bureaucratic arrogance” on substance or procedure when agency action hurt groups she cared deeply about.
In civil procedure, Justice Ginsburg marked a huge path in the field of personal jurisdiction, where she clarified and redefined the law of general jurisdiction and helped frame a more modern approach to specific jurisdiction. She also loomed large in class actions, always aware of the special power of collective litigation. What links Justice Ginsburg’s work in these two areas— class action and jurisdiction—is her effort to confront the challenges the modern national economy poses for the modern procedural landscape. Her jurisdiction jurisprudence rose to meet that challenge. Her orthodoxy in the class action context may have proved too strict, however. Her unbending reading of Federal Rule of Civil Procedure 23’s class action requirements helped give rise to today’s highly unorthodox forms of aggregate litigation, including multidistrict litigation, with the very pathologies she had hoped ;to avoid by adhering to the Rule.
Our previous work on “unorthodox” lawmaking, rulemaking, and civil procedure diagnoses legal unorthodoxies as symptoms of broader pressures on the system, not the causes. Not all unorthodoxies are necessarily bad. There is often a tradeoff between action and gridlock, and between stasis and evolution that is captured by the choice between orthodox and unorthodox legal doctrine. And many of today’s unorthodoxies, like Chevron was when it was first announced, become tomorrow’s black-letter law. We examine how Justice Ginsburg navigated those tensions in two areas of her deep doctrinal expertise.
