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Ruth Bader Ginsburg
Associate Justice
Supreme Court of the United States
Remarks for the Second Circuit Judicial Conference
June 7, 2019

OT 2018 Highlights
Shortly after our meeting a year ago, Justice
Kennedy announced his retirement. It was, I would say,
the event of greatest consequence for the current Term,
and perhaps for many Terms ahead.
For the first argument week of the 2019 Term, the
Court sat with only eight Justices. We regained full
strength in the Term’s second week, immediately after

 Justice Kavanaugh’s confirmation. With Justice
Kavanaugh’s arrival, Justice Gorsuch cheerfully
relinquished to our newest colleague the tasks assigned
to the Junior Justice—answering the telephone the rare
times it rings during Conference, opening the door
when an aide appears to deliver papers a Justice left
behind, conveying to the entourage from the Clerk’s
Office, the Public Information Office, and other Court
administrators the dispositions reached at Conference,
and, most thankless of all chores, sitting on the Court’s
Cafeteria Committee.

 Justice Breyer retained his title this Term as the
Justice who spoke the most words during argument. 1
Justice Sotomayor ranked a close second. She also
asked the first question more often than any other
Justice—a total of 48 times. 2 Justice Thomas, who
ordinarily asks no questions because he thinks the rest
of us ask too many, broke his silence for the first time
since 2016, asking three questions in a single
argument—Flowers v. Mississippi, a case raising a

https://scotusoa.com.
Adam Feldman, Empirical SCOTUS,
https://empiricalscotus.com/2019/050/06/competition-to-speak/.

1
2

 Batson challenge to a prosecutor’s jury selection
practices. 3
Justice Kavanaugh made history by bringing on
board an all-female law clerk crew. Thanks to his
selections, the Court has this Term, for the first time
ever, more women than men serving as law clerks. 4
Women did not fare nearly as well as advocates. Only
about 21% of the attorneys presenting oral argument

3
4

240 So. 3d 1082 (2017); Case No. 17–9572.
https://nytimes.com/2018/10/09/us/politics/kavanaugh-women-law-clerks.html.

 this Term were female; of the thirty-four attorneys who
appeared more than once, only six were women. 5
Some 6,000 petitions for review have been filed so
far this Term. We heard argument in 70 cases. To that
number, add five summary per curiam decisions—
opinions rendered without full briefing or oral
argument. 6 That brings to a total of 75 decisions
already rendered plus those remaining to be released
before the Court recesses. As of today, we have
announced 43 decisions in argued cases. That leaves a
Adam Feldman, Empirical SCOTUS,
https://empiricalscotus.com/2019/050/06/competition-to-speak/; https://scotusoa.com.
6 Escondido v. Emmons, 586 U. S. ___ (2019) (per curiam); Shoop v. Hill, 586 U. S.
___ (2019) (per curiam); Moore v. Texas, 586 U. S. ___ (2019) (per curiam); Yovino v.
Rizo, 586 U. S. ___ (2019) (per curiam); Box v. Planned Parenthood of Indiana and
Kentucky, Inc., 587 U. S. ___ (2019) (per curiam).
5

 large number (27) to be announced in the remaining
June days. Of the 43 argued cases resolved so far, only
11, or just over 25%, were decided by a vote of 5 to 4 or 5
to 3. Given the number of most watched cases still
unannounced, I cannot predict that the relatively low
sharp divisions ratio will hold.
Of the 70 cases fully briefed and argued, 12 cases,
or 17% of our argued cases docket, came to us from the
Ninth Circuit. The Sixth Circuit was a distant second
place, accounting for seven argued cases. Of the five
cases that came to us from the Second Circuit, we have

 so far released only one disposition.
That case, Republic of Sudan v. Harrison, 7 involved
an attempt to serve process on Sudan by sailors injured
in the terrorist bombing of the U. S. S. Cole. The
Foreign Sovereign Immunities Act requires that a
summons, complaint, and notice of suit be “addressed
and dispatched by the clerk of the court to the head of
the ministry of foreign affairs of the foreign state
concerned.” 8 The question presented: Does it suffice to
dispatch service documents to a foreign minister by

802 F. 3d 399 (CA2 2015) (panel); 838 F. 3d 86 (CA2 2016) (denial of panel
rehearing); Case No. 16–1094.
8 28 U. S. C. §1608(a)(3).
7

 mailing them to the foreign state’s diplomatic mission
in Washington, D. C.? The Second Circuit said yes, 9 but
the Fourth Circuit answered no. 10 In line with the
Solicitor General’s argument, we held, 8 to 1, that a
packet is not “addressed and dispatched” to a country’s
foreign minister when it is mailed to an embassy rather
than to the foreign ministry itself.11
First of the four yet to be announced Second
Circuit cases, Gundy v. United States. 12 Gundy was
convicted of violating the Sex Offender Registration

802 F. 3d 399.
Kumar v. Republic of Sudan, 880 F. 3d 144 (CA4 2018).
11 Republic of Sudan v. Harrison, 587 U. S. ___ (2019).
12 695 Fed. Appx. 639 (CA2 2017); Case No. 17–6086.
9

10

 and Notification Act, or SORNA, which generally
requires sex offenders to register where they reside.
The Act vests authority in the Attorney General to
specify whether and how SORNA’s registration
requirements will apply to persons, like Gundy, who
committed qualifying offenses before SORNA’s 2006
enactment. Congress, Gundy argued, had
impermissibly delegated authority to the Attorney
General to make a fundamentally legislative decision,
i.e., did SORNA’s registration requirements apply to
pre-Act offenders. The District Court and, in turn, the

 Second Circuit, 13 rejected Gundy’s attempt to revitalize
the “Nondelegation Doctrine,” which the Court last
invoked to hold legislation unconstitutional in 1935. 14
Though argued October 2, the second day of the Term,
Gundy will be among the decisions rendered during the
final weeks of the Term.
Who counts as a state actor subject to First
Amendment constraints is at issue in Manhattan
Community Access Corp. v. Halleck. 15 New York law
requires local governments to establish public access

695 Fed. Appx., at 641, n. 2.
See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935).
15 882 F. 3d 300 (CA2 2018); Case No. 17–1702.
13
14

 channels when issuing a cable franchise to an operator
with more than 36 channels. New York City assigned
management of public access channels for the Borough
of Manhattan to a private, nonprofit corporation,
Manhattan Neighborhood Network (MNN). Halleck and
Melendez, initiators of the litigation, produced content
for MNN’s public access channel. When Halleck and
Melendez made and broadcast a video critical of MNN,
MNN barred them from the channel. They sued,
asserting that MNN violated their First Amendment
rights. MNN’s answer: We are not a state actor,

 therefore the First Amendment does not apply to our
conduct. The District Court agreed and dismissed the
suit. 16 The Court of Appeals reversed 2 to 1. As you
know, the state-action doctrine is not a crystal clear
area of the law; it has had its ups and downs. Do not
anticipate a decision that will dispel further
controversies over what qualifies as state action.
Two Second Circuit cases appeared on our April
calendar, the most crowded sitting of the Term. We try
to front load, with a heavy calendar in October, and a
lighter one in April. This Term, the opposite occurred,
16

224 F. Supp. 3d 238 (SDNY 2016).

 but not because we planned it that way.
The first week of the April sitting, we heard
McDonough v. Smith, 17 a case concerning a charge that
a county prosecutor had fabricated evidence in order to
gain conviction of a County Board of Elections
Commissioner for forging absentee ballots in a primary
election. Once acquitted, the former Commissioner
sued the prosecutor under 42 U. S. C. §1983 for violation
of his Fourth, Fifth, and Sixth Amendment rights. Was
the suit timely? Most circuits would have said yes,
because it was commenced within three years (the
17

898 F. 3d 259 (CA2 2018); Case No. 18–485.

 applicable limitations period) after the criminal
proceedings terminated in the indicted Commissioner’s
favor. 18 The Second Circuit generated a split by holding
that the three-year clock began ticking when the
Commissioner first knew, or should have known, that
tainted evidence had been used against him. 19 That
point was reached, both the District Court and the
Second Circuit concluded, no later than the end of
McDonough’s first trial, which had terminated in a

Floyd v. Atty. Gen. of Pa., 722 Fed. Appx. 112 (CA3 2018); Bradford v.
Scherschligt, 803 F. 3d 382 (CA9 2015); Mondragon v. Thompson, 519 F. 3d 1078
(CA10 2008).
19 898 F. 3d, at 267.
18

 mistrial. 20 An array of amici, including the SG, ACLU,
and Cato Institute, has urged reversal of the Second
Circuit’s judgment.
On the next to last hearing day of the Term, we
heard argument in Department of Commerce v. New
York, 21 a case of huge importance. Secretary of
Commerce Wilbur L. Ross, Jr., decided to include a
citizenship question on the 2020 census questionnaire.
He said he was responding to a Department of Justice
request for citizenship data to aid in enforcement of the
Voting Rights Act. Census Bureau analyses predicted
20
21

Ibid.
351 F. Supp. 3d 502 (SDNY 2019); Case No. 18–966.

 that adding the question would depress the census
response rate for noncitizen and Hispanic households,
resulting in poorer census data. Evidence from DOJ
showed that Ross had sought inclusion of a citizenship
question long before the Department’s request.
Several States and non-governmental organizations
challenged Secretary Ross’s decision as arbitrary and
capricious and contrary to law in violation of the
Administrative Procedure Act. Plaintiffs also asserted
that addition of the citizenship question violated the
Constitution’s Enumeration Clause. After trial, in an

 opinion and order by Judge Furman spanning almost
two hundred pages in F. Supp. 3d, the District Court
ruled for the plaintiffs on their APA claims. The court
accordingly enjoined the addition of a citizenship
question to the decennial census.22
The Government pressed upon us the imminent
need to print the census forms, and asked us to take up
the case immediately without awaiting Second Circuit
review. We complied with that request. After we
agreed to hear the case, two other courts—the Northern
District of California and the District of Maryland—
22

351 F. Supp. 3d, at 679.

 weighed in, issuing decisions enjoining addition of the
citizenship question. 23 Speculators about the outcome
note that last year, in Trump v. Hawaii, 24 the Court
upheld the so-called “travel ban,” in an opinion
granting great deference to the Executive.
Respondents in the census case have argued that a
ruling in Secretary Ross’s favor would stretch
deference beyond the breaking point.
Some headline cases from other circuits. Also

California v. Ross, 358 F. Supp. 3d 965 (ND Cal. 2019); Kravitz v. Department of
Commerce, 366 F. Supp. 3d 681 (Md. 2019).
24 585 U. S. ___ (2018).
23

 involving deference to administrators, Kisor v. Wilkie 25
came to us from the Federal Circuit. The question
squarely presented: Should the Court overrule Auer v.
Robbins, 26 a 1997 opinion, and Bowles v. Seminole Rock
and Sand Co., 27 Auer’s 1945 predecessor, both holding
that courts should defer to an agency’s reasonable
interpretation of its own ambiguous regulation.
Immediately at issue, a Department of Veterans Affairs
regulation governing reconsideration of a claim.
Reconsideration was in order, the regulation provided,

869 F. 3d 1360 (CAFed 2017); Case No. 18–15.
519 U. S. 452 (1997).
27 325 U. S. 410 (1945).
25
26

 if relevant records turned up in the VA claim file,
records that existed when the claim was first decided,
but were not then associated with the claim. The VA
read “relevant” to exclude a record that would not have
mattered if initially presented in light of the other
evidence. Kisor, the veteran who sought
reconsideration, gave the term “relevant” a broader,
more veteran-friendly, interpretation.
The Federal Circuit, in accord with Auer and
Seminole Rock, deferred to the VA’s interpretation. 28
As a result, Kisor lost his plea for retroactive benefits.
28

869 F. 3d, at 1368.

 Kisor asks the Court to condemn the Auer-Seminole
Rock doctrine because it gives agencies too much
interpretive authority in violation of the separation of
powers and the Administrative Procedure Act. What
role, if any, will stare decisis play in the Court’s
decision, we shall soon know.
In a Sixth Circuit case, Gamble v. United States, 29
the petitioner asks us to end the separate-sovereigns
exception to the Double Jeopardy Clause. Under that
exception, separate prosecutions for the identical
offense do not constitute double jeopardy if the charges
29

694 Fed. Appx. 750 (CA6 2017); Case No. 17–646.

 are brought by a State and the Federal Government,
even though the second prosecution would be barred if
brought by the same government that brought the first
prosecution. Gamble was first prosecuted and
convicted under Alabama law for possession of a
handgun by a person with a prior conviction of a “crime
of violence” or a “misdemeanor offense of domestic
violence.”
Meanwhile, Gamble was indicted by a federal grand
jury on a charge of possession of a firearm by a
convicted felon. Gamble argued that the federal

 indictment should be dismissed, and the separatesovereigns exception abandoned. His position: The
States compose one Federal Union; parts of that Union
are not separate from the whole.
Nielsen v. Preap, 30 a Ninth Circuit case, concerns 8
U. S. C. §1226(c), a provision of the Immigration and
Naturalization Act which directs the Attorney General
to take certain removable aliens into immigration
custody “when [they are] released” from criminal
custody, and to detain them without possibility of bond
throughout their removal proceedings. The question
30

831 F. 3d 1193 (CA9 2016); Case No. 16–1363.

 presented: Are aliens who have committed crimes
subject to mandatory detention without bond if the
Government does not detain them immediately after
their release from criminal custody?
In the cases consolidated for our hearing, lawful
permanent residents, after serving time for a criminal
offense, were released into the community; they
returned to their families and resumed their lives.
Long after, immigration authorities took them into
custody and detained them without bond hearings. In
an opinion by Justice Alito for a sharply divided Court,

 the majority read the statute to mandate bondless
detention pending completion of removal proceedings,
which may take years to unfold. 31 Justice Breyer,
speaking for the four dissenters, read the mandatory
detention statute to apply only to aliens detained
within a reasonable time—presumptively no more than
six months—after serving their criminal sentences.
From the Fourth Circuit, American Legion v.
American Humanist Association 32 presents the question
whether a 40-foot-tall cross located on a traffic median
in Maryland, and maintained by the Maryland-National
31
32

586 U. S. ___ (2019).
874 F. 3d 195 (CA4 2017); Case Nos. 17–1717, 18–18.

 Capital Park and Planning Commission, violates the
Establishment Clause. Known as the Bladensburg
Peace Cross, the monument was erected as a memorial
to soldiers from the county who died in World War I.
The Fourth Circuit, dividing 2 to 1, held the towering
monument an unconstitutional endorsement of
religion. 33 The Latin Cross, the majority reasoned, is
not a generic symbol of death, it is the “preeminent
symbol of Christianity,” the “symbol of the death of
Jesus Christ.”34
State courts, as always, account for important
33
34

874 F. 3d, at 212.
Id., at 206–207.

 issues brought before us. In Timbs v. Indiana, 35 for
example, the state supreme court had held that the
Eighth Amendment’s Excessive Fines Clause applied
only to the Federal Government, not to the States. In
the case we took up, Indiana seized, in civil forfeiture, a
car petitioner Timbs had recently purchased for almost
$42,000. The drug crime to which Timbs had pleaded
guilty, and in connection with which his car was seized,
carried a maximum fine of $10,000. The question we
addressed: Does the Fourteenth Amendment
incorporate the Eighth Amendment’s protection against
35

62 N. E. 3d 472 (Ind. 2017); Case No. 17–1091.

 excessive fines? In a unanimous judgment, we
answered yes. Like the Federal Government, States
may not impose exorbitant fines. 36
One of the cases awaiting decision involves alleged
racial gerrymandering in Virginia. 37 And very high on
the most-watched cases list, alleged partisan
gerrymandering in North Carolina 38 and Maryland. 39
All three cases were initially aired before three-judge
federal district courts with the Supreme Court as first
and last appellate instance.
586 U. S. ___ (2019).
Bethune-Hill v. Virginia Bd. of Elections, 326 F. Supp. 3d 128 (ED Va. 2018);
Virginia House of Delegates v. Bethune-Hill, Case No. 18–281.
38 Rucho v. Common Cause, 318 F. Supp. 3d 777 (MDNC 2018); Case No. 18–422.
39 Lamone v. Benisek, 348 F. Supp. 3d 493 (Md. 2018); Case No. 18–726.
36
37

 The Virginia case also presents a threshold
standing-to-sue question. Originally allied with the
Virginia House of Delegates, Virginia’s Attorney
General decided against fighting on when a three-judge
district court ruled for the plaintiffs. Does Virginia’s
House of Delegates have standing to appeal when the
State’s Executive does not wish to continue the fray?
And if so, did the District Court correctly hold that
eleven house districts were unconstitutional racial
gerrymanders?
Given modern technology, a state legislature can

 create a congressional delegation dramatically out of
proportion to the actual overall vote count. In North
Carolina, for example, in the 2016 election, Republicans
won 53 percent of the statewide vote, yet they won 10 of
the 13 congressional seats. 40 And in 2018, with the same
map governing, Democrats won a slight majority in the
statewide congressional vote, but again won seats in
only three districts.
In North Carolina, a Republican-controlled state
legislature drew the maps. In Maryland, Democrats
controlled the state legislature and conspicuously drew
40

Rucho, 318 F. Supp. 3d, at 810.

 congressional district lines to favor Democrats and
dilute Republican votes. However one comes out on the
legal issues, partisan gerrymandering unsettles the
fundamental premise that people elect their
representatives, not vice versa.
Looking ahead to next Term, two cases from the
Second Circuit will be frontrunners. We granted review
in New York State Rifle & Pistol Association v. City of
New York 41 to decide whether City laws regulating the
transport of handguns pass constitutional inspection.

41

883 F. 3d 45 (CA2 2018); Case No. 18–280.

 We also took up Altitude Express, Inc. v. Zarda 42 and
consolidated it with an Eleventh Circuit case, Bostock v.
Clayton County, 43 to resolve a circuit split on this
question: Does the ban on employment discrimination
on the basis of sex contained in Title VII of the Civil
Rights Act of 1964 encompass discrimination on the
basis of sexual orientation?
The same day we granted review in Zarda and
Bostock, we agreed to review R.G. & G.R. Harris

883 F. 3d 100 (CA2 2018) (en banc) (Title VII bars discrimination based on sexual
orientation); Case No. 17–1623.
43 723 Fed. Appx. 964 (CA11 2018) (Title VII does not bar discrimination based on
sexual orientation); Case No. 17–1618.
42

 Funeral Homes v. EEOC, 44 a case from the Sixth Circuit
which held that Title VII prohibits employment
discrimination against transgender individuals.
Next Term’s cases also include Mathena v. Malvo. 45
Malvo was the younger of the two snipers involved in
the 2002 D. C. area random killings. He was sentenced
by a Virginia state court to life without the possibility
of parole. In Miller v. Alabama, 46 we held that the
Eighth Amendment bars mandatory sentencing of
juveniles (at the time the offense was committed) to life

884 F. 3d 560 (CA6 2018); Case No. 18–107.
893 F. 3d 265 (CA4 2018); Case No. 18–217.
46 567 U. S. 460 (2012).
44
45

 without parole. The question in Malvo’s case: May a
juvenile (at the time of the criminal conduct) be
sentenced to life without parole if imposition of the
sentence is discretionary? The Fourth Circuit said no;
but the Virginia Supreme Court had reached the
opposite conclusion. 47
And in Ramos v. Louisiana, 48 we will revisit
Apodaca v. Oregon, 49 which held that a state-court
conviction by a non-unanimous jury does not violate the
Sixth Amendment, as incorporated by the Fourteenth

Jones v. Commonwealth, 795 S. E. 2d 705 (Va. 2017).
231 So. 3d 44 (La 2017); Case No. 18–5924.
49 406 U. S. 404 (1972).
47
48

 Amendment. Ramos was found guilty of second-degree
murder by a 10 to 2 jury verdict. He asks us to overrule
Apodaca and hold that the Sixth Amendment requires
jury unanimity in state as well as federal criminal
trials.
On the procedural front, we have followed the lead
of the Federal Rules of Appellate Procedure. Effective
July 1, the word limit for the parties’ main briefs has
been cut from 15,000 words to 13,000. Reply briefs,
formerly due no fewer than seven days before
argument, will now be due no fewer than ten days pre-

 argument.