Douglas F. Gansler on Monday recalled as bittersweet Justice Ruth Bader Ginsburg’s interjection while he was arguing before the Supreme Court that the prohibition on police officers questioning suspects who have invoked their right to counsel expires after a period of years, enabling police to resume interrogation after reminding defendants of their Miranda rights.
Ginsburg told Maryland’s then-attorney general that, in his case, these were the same police officers to whom defendant Michael Shatzer had invoked his right to counsel.
Perhaps the invocation does not expire as to those officers and this defendant because the right asserted perpetually governs “the same police department, the same investigation,” Ginsburg said during the Oct. 5, 2009, argument session.
Such a limiting standard could protect the individual defendant while ensuring that the court is not hamstringing police in other jurisdictions by “covering the waterfront of every interrogation about any crime, any place,” allegedly committed by the defendant, Ginsburg added.
Ginsburg’s questions showed her “raw intellect and ability to parse through issues,” Gansler said. The justice was engaging in “a balancing of the state’s interest and the individual’s interest,” he added.
The high court ultimately held in Maryland v. Shatzer that the invocation of the right to counsel bars the police from reinitiating interrogation for at least 14 days.
Gansler’s reflections followed Ginsburg’s death Friday of complications from metastatic pancreatic cancer at her home in Washington at age 87.
The Brooklyn, New York-bred Ginsburg had already gained fame in legal circles as a women’s rights attorney and federal appeals court judge when President Bill Clinton appointed her in 1993 to the Supreme Court, where she served until her death.
“She certainly was not a shrinking violet,” Gansler said. “She reminded me of my Jewish grandmother, very sharp and intellectual.”
Defense attorney Nancy S. Forster said Monday that Ginsburg “clearly respected the litigants before her” even as she grilled them with questions in challenging their arguments.
Such was Forster’s fate on Nov. 3, 2003, as she urged the Supreme Court in Maryland v. Pringle to hold that police officers lacked probable cause to arrest a front-seat car passenger when they found cocaine in the back armrest of a vehicle being driven by someone else.
A skeptical Ginsburg asked Forster, then Maryland’s chief public defender, why a police officer cannot arrest a passenger when he sees clear evidence of illegal cocaine possession in a passenger car.
“So the officer says, ‘I know that a crime has been committed,’” Ginsburg told Forster.
“In the whole world, there are only three possible people who could do it,” Ginsburg said. “What instruction would you give to the officer on the scene who knows that a crime has been committed, there are three possible people, but he can’t say which? Is it the answer that he can make no arrest?”
Forster responded that the driver, but not the passengers, could have been arrested because drivers are expected to know what is in the car.
But Ginsburg said that appears to be unfair, as a passenger would have as much access as the driver does to the drugs inside the car.
“If this were a bus or a tavern or a theater … then it certainly would be unreasonable to assume that the front seat passenger could reach back to the last row of the theater,” Ginsburg said. “But here, this was a small car. It isn’t hard for somebody in the front seat to turn around and push down the armrest.”
The high court ultimately ruled unanimously in the state’s favor, saying the police had probable cause to arrest passenger Joseph Pringle on a charge of cocaine possession.
“Justice Ginsburg’s piercing questions belied her demure stature,” Forster stated by email Monday. “I can honestly say that it was Justice Ginsburg’s demeanor and soft-spokenness (even when asking those piercing questions!) that calmed my nerves as I approached the podium and began my argument.”
Maryland Solicitor General Steven M. Sullivan appeared before the Supreme Court on multiple occasions to defend the state’s 6th Congressional District against Republican charges that it was redrawn after the 2010 census by Maryland’s Democratic leadership to unconstitutionally freeze out GOP voters and ensure the election of a Democrat as U.S. representative.
During these arguments, Ginsburg appeared supportive of the Republicans’ concern that the overwhelmingly Democratic district violated its GOP residents’ First Amendment right to political association. Ginsburg noted that then-Gov. Martin O’Malley, a Democrat, and the Democratic-led General Assembly’s redrawing of the 6th District increased the Democrats’ dominance of the state’s congressional seats from 6-to-2 to 7-to-1.
“When the legislature and the government, the legislative leaders and the governor, say we want 7 to 1, we want to shrink Republican representation by one, map makers, achieve that for us, I mean, is there any genuine doubt that that was the aim from the beginning, to shrink Republican districts by one?” Ginsburg asked.
The Supreme Court ultimately sided with Sullivan, ruling 5-4 in Lamone v. Benisek
that redistricting is a political question which must be left to elected representatives. Ginsburg was among the dissenters last year in saying that courts should review redrawn political maps that are challenged as so excessively partisan as to violate the First Amendment.
“I felt bad that I had to disagree with her, but that’s my job,” Sullivan said Monday. “Her delivery was always polite and respectful (and) asked in a way that I really hated to disagree with her.”