Justice Ginsburg, Paris Hilton and a Powerful Dissent

By Jess Bravin

Associated Press

Supreme Court Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg got props for her routine Friday night, when she contested her reputation as the least funny member of the Supreme Court with a quip-filled address to the American Constitution Society, a liberal legal organization holding its convention in Washington.

One pending Supreme Court case, concerning profane words spoken by minor celebrities on television, asks whether the FCCs current indecency policy violates the First or Fifth Amendment. The Paris Hiltons of the world, my law clerks told me, eagerly await the decision, Justice Ginsburg said. It is beyond my comprehension, I told the clerks, how the FCC can claim jurisdiction to ban words spoken in a hotel on French soil.

Remember, Supreme Court justices are graded on a curve.

But Justice Ginsburg ended her remarks with a more serious point, observing that dissenting opinions, even if speaking for the losers on the court, can still have an effect in the world outside. Most famously, Justice Ginsburgs dissent in Ledbetter v. Goodyear directly prompted passage of the Lilly Ledbetter Fair Pay Act, easing the path for lawsuits against employers accused of sex discrimination. But she took particular pride in a lesser-known case involving a California woman whose homicide conviction had been upheld by the state courts and whose appeals to the U.S. Supreme Court repeatedly had been rejected.

In the courts first opinion of the current term, Cavazos v. Smith, I addressed a dissent to a different audience. Shirley Ree Smith, abysmally repr! esented at trial, was convicted of shaking her seven-week-old grandson to death. Her sentence, 15 years to life. The Ninth Circuit, on habeas review, held there was no convincing support for the states theory that the infant died of so-called shaken baby syndrome, Justice Ginsburg said.

On Ms. Smiths third high court petition, the Supreme Court summarily reversed the Ninth Circuit and told it to stop meddling with her conviction.

What is now known about shaken baby syndrome casts grave doubt on the charge leveled against Smith; and uncontradicted evidence showed she poses no danger whatever to her family or anyone else in society, Justice Ginsburg wrote in her dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. Ms. Smith cited that dissent in appealing for clemency from California Gov. Edmund G. (Jerry) Brown Jr. In April, he commuted her sentence to time served.

Justice, at last, prevailed, do you not agree? Justice Ginsburg said.