March 18, 2006
The Arrogance of Ruth Bader Ginsburg
The half-vast editorial staff are shocked... shocked we tell you, to learn that Justice Ruth Bader Ginsburg, that ardent champion of progressive and enlightened values, has been marginalizing her ideological opponents and treating them as Other. Apparently the touching humility Ms. Ginsburg advocates ("we can learn from others," "we can join hands with others," we should "share our experience") applies only when dealing with tolerant and progressive nations like France:
Supreme Court Justice Ruth Bader Ginsburg assailed the court's congressional critics in a recent speech overseas, saying their efforts "fuel" an "irrational fringe" that threatened her life and that of a colleague, former justice Sandra Day O'Connor.
She then quoted from what she said was a "personal example" of this: a Feb. 28, 2005, posting in an Internet chat room that called on unnamed "commandoes" to ensure that she and O'Connor "will not live another week".
From this, we are to understand that anyone who disagrees with Ms. Ginsburg's judicial philosophy should refrain from saying so because it might encourage some deranged nut to grab an Uzi and begin mowing down Supreme Court Justices? Let's explore that thought. Perhaps environmentalists should just pipe down and stop trying to pass laws to limit logging. After all, this sort of thing just encourages eco-terrorists who spike trees.
Tempting as it was to take on Ms. Ginsberg's false conflation of speech with murder threats, this morning's coffee snorter (via Bashman) was a Richmond Times-Dispatch op-ed that rather thoroughly took the errant Justice to the woodshed:
Many people have disputed the idea that Justices should base their rulings on cues from foreign countries rather than the American Constitution. Ms. Ginsburg noted that one of them was Roger Taney, in his infamous Dred Scott decision. (Because Taney was wrong about slavery, and he also believed that 2 + 2 = 4, we evidently must conclude that mathematical equation also is incorrect.) She pointed out that defenders of Apartheid in South Africa, where she gave her talk, resisted calls from abroad to end the segregation system. Oh, and Justice Antonin Scalia disagrees with her, too. Those people are all alike.
Ms. Ginsburg's thinly veiled attempt to establish guilt by association is a shopworn technique. It was exploited most famously by Joseph McCarthy to intimidate those who disagreed with him. Joseph Stalin also used guilt by association to send potential resisters of Soviet Communist tyranny to the gulag. Recently an Italian commission concluded that the Soviet Union was behind the attempt to assassinate Pope John Paul II.
We are not, of course, in any way suggesting that people who share Ms. Ginsburg's approach are McCarthyite Communist mass-murdering anti-Catholic plotters of papicide. We wouldn't stoop to that level.
Ed Whelan has more on Ms. Ginburg's rather creative use of "logic" to characterize anyone who disagrees with her as some sort of lunatic extremist. In an April 2005 speech in which she extols the value of "comparative dialogue - on sharing with and learning from others", Ms. Ginsburg airily dismisses those who disagree with her viewpoints as racist extremists "frozen in time". Whelan comments:
The rhetorical centerpiece of Ginsburg's speech is a crude attack against originalists — those who adhere to the original understanding of the Framers' Constitution and of the various amendments to it. Here's the structure of her illogic:
(1) Chief Justice Taney in Dred Scott stated the originalist principle that no "change in public opinion or feeling . . . in the civilized nations of Europe or in this country should induce the [Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted."
(2) This statement of originalist orthodoxy, Ginsburg asserts, is "extreme."
(3) Notwithstanding the fact that the Civil War and the post-Civil War Amendments reversed Dred Scott, Chief Justice Rehnquist and Justices Scalia and Thomas somehow continue to share Taney's "extreme" position that constitutional rulings should not be based on foreign developments. With this glaring non sequitur, Ginsburg absurdly insinuates that the [originalist] position espoused by her three colleagues has some special kinship with [the racist legacy of] Taney and Dred Scott.
Taney's opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney's opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court's first use of the modern judicial activist's favorite tool, "substantive due process," to invalidate a statute — the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: "I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings," wrote Justice McLean. "[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it," explained Justice Curtis in exposing Taney's deviation from originalism.
But this type of hyperbole and false equivalence is nothing new from the tolerant Left. Under the guise of inclusivity and humililty, they espouse behavior antithetical to these values: the suppression of opposing ideas. It must be noted that their ardent defense of diversity and tolerance extends only to those viewpoints which support their own. But then if one believes the end justifies the means, using judicial fiats to subvert the democratic process is nothing to be ashamed of:
In attacking originalism as "frozen in time," Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times. She claims that judges "honor the Framers' intent 'to create [sic] a more perfect Union'" when they rewrite the Constitution to comport with their own understandings of the needs of the day. But it is "We the People of the United States," not judges, to whom the Constitution looks to "form a more perfect Union."
Justice Ginsburg's arrogant distain for the facts may lead her to believe it's fine to snooze through oral arguments, but she's liable to have a rude awakening if her own logic is applied against those on the Left who agree with her. There have been no end of death threats against the President since he took office five years ago.
Perhaps Justice Ginsburg thinks anyone who disagrees with the administration should be silenced too? After all, all this dissent just encourages the whackos out there.
She ought to know.
Posted by Cassandra at March 18, 2006 10:06 AM
Posted by: Cassandra at March 18, 2006 01:03 PM
Posted by: Cassandra at March 18, 2006 01:03 PM
In light of all this we should just surrender to Phrance. It would save so much time and ennui.
Posted by: Cricket at March 20, 2006 10:21 AM