Document Type

Working Paper

Publication Date

7-15-2010

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

Abstract

Justice Ruth Bader Ginsburg is well known for her restrained jurisprudence and yet one line of her opinions has been criticized as "substantially illegitimate" Ruhrgas AG v Marathon Oil Co and Sinochem International Co v Malaysia International Shipping Corp both involve "jurisdictional resequencing" which in certain circumstances permits a federal court to decide a threshold jurisdictional question such as forum non conveniens before it resolves the question of subjectmatter jurisdiction Because jurisdictional resequencing allows courts to decide questions when they may in fact lack subjectmatter jurisdiction at least one critic has said this doctrine is "close to the line that separates valid authority from unprincipled usurpation" In this Article I argue that contrary to this criticism both Ruhrgas and Sinochem demonstrate Justice Ginsburgs restrained decisionmaking In particular both decisions reflect her view that the federal courts as the undemocratic institutions in our government should be careful to exercise their power when it might trench on the powers of the elected branches By avoiding complex questions of subjectmatter jurisdiction "“ control of which apart from constitutional constraints is given to Congress "“ the courts avoid questions about the margins of their power precisely the kinds of questions that might involve judicial overreaching

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