Supreme Court Justice Ruth Bader Ginsburg said a number of curious things in her interview with the New York Times published Saturday.


Supreme Court Justice Ruth Bader Ginsburg (Andrew Harrer/Bloomberg)

Unsurprisingly, she is not going anywhere (i.e. retiring), despite liberals’ fears that if she leaves the bench after President Obama leaves office, a conservative president might fill her spot with a judge not of her philosophy.

It’s rather cheesy for the left to essentially say she should quit now rather than die under a GOP successor. Besides, isn’t Hillary Clinton already the president-elect? The article also reveals that the left is confident a liberal president will pick obediently liberal justices who won’t disappoint (as Ginsburg rarely if ever has).

At any rate, unlike pundits, Supreme Court justices generally think of themselves as unique rather than as pawns on a political chessboard. So Ginsburg is staying and effectively telling liberals, deal with it.

Her other comments were startling for their lack of self-awareness. Consider:

She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”

The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision. “I wouldn’t make a connection,” she said.

If she made that argument before the Supreme Court, surely more than one justice would belittle it. It is, of course, a perfect analogy, which is why the New York Times reporter felt obliged to push her a bit. The fear of courts usurping the field, as the court did on abortion in Roe, certainly explains Justice Anthony Kennedy’s muddled majority opinion.

Ginsburg then plays the game that liberal pundits have adopted, suggesting the conservative court majority may be “activist” because it has overturned laws. Liberal pundits would certainly agree, pointing to the decisions striking down parts of the Voting Rights Act and McCain-Feingold finance reform.The mere fact that the court sliced its objections so thinly as to leave the rest of these statutes intact is itself an exercise in judicial restraint.

Judicial activism means inventing new rights (abortion, for example), disregarding the plain text of the Constitution (e.g. holding all death-penalty statutes unconstitutional) or rewriting the statute before the court (as the chief justice did in such dramatic fashion for Obamacare by reinterpreting the tax/fine portion of the statute and devising a new Medicaid opt-out for the states, both pure inventions of the chief justice). The habits (inventing rights, ignoring the text of the Constitution and contorting statues) have characterized Ginsburg’s record. It is not “activist” to strike down a statute that fails to comport with the Constitution. And it is not restraint to allow Congress (e.g. on McCain-Feingold) to run roughshod over rights spelled out in the Constitution (free speech).

You can’t help but see Ginsburg as stuck in her pre-court mode, an activist for left-leaning legal causes. (“There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.”) Ummm. It is not hard to see that her judicial philosophy boils down to “liberal causes good, conservative ones bad.” That, rather than judicial restraint or activism, explains her desire to strike down the Defense of Marriage Act (in total, unlike the restrained approach of Kennedy) while keeping alive campaign-finance reform, Obamacare and the 50-year-old standard for pre-clearance in section 5 of the Voting Rights Act.

I’d like to think Supreme Court justices have a consistent judicial philosophy and don’t merely strike down what they disagree with and rescue what they like. I’d at least like to believe they strive to suppress their cheerleading and catcalling for legislation on substantive grounds. But alas, that’s certainly not true of the four liberal justices (contrasted with conservative Kennedy and Chief Justice John Roberts), who march predictably and in unison. I guess even the New York Times acknowledges the gig is up.

 

 

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.