Political Forecast : Equal Justice Under the Law : Who Will Ginsburg Most Often Vote With?

Who will Ruth Bader Ginsburg, the newest justice on the U.S. Supreme Court, most often side with? The Times asked six professors of constitutional law.

Gerald Gunther, Professor of constitutional law, Brooklyn Law School:

She’ll be with the newly emergent centrist block--(David H.) Souter and (Anthony M.) Kennedy. Her track record on the D.C. Circuit, which was just as ideologically split (as is the Supreme Court), was that of a peace-maker. She was the bridge between left and right. She won’t make a dramatic impact--centrists aren’t grand-gesture types.

Barbara Allen Babcock, Ernest W. McFarland Professor of Law, Stanford:

I nourish a tiny hope she’ll form an alliance with Souter, Kennedy, (Harry A.) Blackmun and (John Paul) Stevens on the rights of the criminally accused. The issue used to be whether the accused were properly convicted; now, it’s with the process by which a verdict is reached. I think she’ll share that concern with process.

There’s an upcoming case about women on juries: whether peremptory challenges can be based on gender alone. The Supreme Court found that race was never a sufficient challenge. As a matter of equal protection, will this be extended to women?

This is the first gender case in 10 years to reach the court. Amazingly, it coincides with her arrival.

Charles Fried, Professor of constitutional law, Harvard Law School, and former solicitor general in the Reagan Administration:

Her line as an advocate for women’s causes was extremely appealing--just straightforward classical equality. (Sandra Day) O’Connor feels the same.

On affirmative action, she’ll line up with Blackmun. It won’t change anything much. It will still be 6-3, with Stevens; 5-4, if Souter’s there, too.

On church and state, she’ll make a big difference. She’s more anti-Establishment. Blackmun is also a big separationist. (Antonin) Scalia less so, (William H.) Rehnquist less so.

On criminal procedure, she’ll be fairly vigorous. She hasn’t expressed herself yet on the death penalty, but she’s no radical--no (William J.) Brennan (Jr.).

Randall Kennedy, Professor of law, Yale Law School:

It’s hard to know how she’ll line up. She’s not a flaming liberal: She’s a strong liberal with good, decent, liberal instincts. She may nudge the Supreme Court in a more liberal direction, but these things are very incremental. One person has very little effect.

Catharine McKinnon, Professor of law, University of Michigan Law School:

You can’t tell who her allies will be. She had broad alliances on the Court of Appeal, worked well with people of diverse politics. She’s circumspect, principled, engaged but open-minded. She calls the issues as they come. That makes it impossible to answer this question.

I look forward to there being two women on the bench with distinctive political perspectives. Ginsburg brings a long history of a primary commitment to legal rights for women. O’Connor has shown receptivity to these issues and has educated herself about this.

Bruce Fein, Associate deputy attorney general in the Reagan Administration:

She’s on a spectrum that goes, left to right: Blackmun, Stevens, Ginsburg, Souter, O’Connor, Kennedy, Rehnquist, (Clarence) Thomas, Scalia. She’s just to the left but look at Byron White’s record: He started off as a liberal and got more conservative--on abortion and homosexuality. She’ll be casting her vote on free speech--for example, on the right to distribute pamphlets in airports. Kennedy is strong here.

They’re likely to throw out the Georgia and Florida cases (insuring ethnic representation in elections). But on affirmative action, she might vote the other way. Sandra Day O’Connor has repeatedly voted against stereotyping on race and gender.

Ginsburg has renounced the idea that she had any ideology. She’s pragmatic--a Talleyrand, not a Robespierre. That’s a paradox for liberals.