Supreme Court justices are the closest thing we have in the U.S. to an aristocracy, maintaining the once-universal situation where the office and the person are one that has otherwise fortunately disappeared. Justice Ginsburg had an extraordinary career, but one must say that the worst part of her life was her delay in leaving office.
She was hardly alone in this. Justices prefer to die on the bench, and one can hardly blame them. Wearing the robe, they’re one of nine in all the world. Retired? Well, they used to be somebody, way back when. And the “Notorious RBG” cult—picturing her as some sort of magical liberal fairy godmother who could protect us all with a wave of her magic wand—didn’t help.1 Who wants to be a retired legend?
I’ve read a number of reminiscences about Ginsburg, saying that she didn’t want to leave the Court because “she had so much still to do.” Well, it’s a nice illustration of the wise adage that no one should be the judge of their own case. The shocking fact is, mental acuity starts to decline once you reach your fifties, because your brain cells start dying, and, unlike other cells, they don’t replace themselves. Ginsburg’s comments about such things as Colin Kaepernick and, yes, Donald Trump, were petty and trivial, and a pretty obvious sign of senility. Furthermore, it might have occurred to Ginsburg that the world has changed (a lot) since her formative years, when, for example, the dean of Harvard Law accused her of “taking the place of a man”—some poor schmuck who would, presumably, have to endure the utter indignity of, you know, Yale!2
Ginsburg’s friendship with Justice Scalia, much written about, is indeed striking, and the best thing I ever heard about Nino was his answer, when questioned by an aide for sending two dozen roses to such a flaming liberal on her birthday: “Some things are more important than opinions.” In fact, one would have to say that Scalia should receive the greater credit for his tolerance, since he “must” have considered Ginsburg an agent of mass murder.3
Part of the bond, I would imagine, was simply that people at the very top are very likely to have a lot in common, though that’s far from a guarantee. The obstacles that Ginsburg faced as a woman and a Jew were of course far greater than those encountered by Scalia as an Italian Catholic, but being the child of immigrant Italian parents at Harvard Law in the 1950s was probably not without its strains. Both did love the law—Scalia particularly admired Ginsburg’s devotion to and knowledge of civil procedure as the real guts and guarantee of freedom. Both had climbed to the very top of the greasy pole, where it’s not enough just to be brilliant and hard-working—you have to thread a lot of minefields as well, not easy for a pair of hard-chargers like Ruth and Nino.
Ginsburg also had a close friendship with Justice O’Connor, whom she clearly very much admired as a fellow sexual pioneer, the very first woman on the Court, who understood as no one else the burdens a fellow pioneer faced. O’Connor, who retired from the Court at age 75, in part to care for her husband, later said her retirement was the greatest mistake she ever made, which surely encouraged Ginsburg to stay on the Court, and another illustration of the fact that important people who got where they are by never giving up, never can give up and, if they live long enough and don’t have to face the electorate, cling to power well beyond their ability to use it wisely.
Ginsburg said her favorite quotation came from Justice Felix Frankfurter’s opinion for the Court in McNabb v. US (1943): “The history of liberty has largely been the history of observance of procedural safeguards.”4 It’s a bit “curious” that someone who prided herself on being a stickler for procedure was so comfortable using the arbitrary power of the Court to overturn state laws when they conflicted with her own notions of human equality. It’s well known that Ginsburg “admitted” that Roe went too far (as described in this interview between Dahlia Lithwick and Jeffrey Rosen in Slate) and argued that it would have been “better” for liberals to have won the battle for reproductive rights via the ballot box on a state by state basis. But she also said that the Texas law, which permitted abortion only to save the mother’s life, was clearly unconstitutional, ignoring rather blithely that, according to the Guttmacher Institute, 43 other states had the same law.5 Her further comment that a decision overturning the Texas law and establishing a constitutional right to abortion less sweeping than Roe should have been issued by the Court and should have been based on equal protection6 rather than privacy strongly suggests that her approach on issues like abortion and homosexuality was to decide what was “right” according to her own conscience and then look for a place in the Constitution to lodge the “right” she had already invented. (How she would have defined this limited right to an abortion she had in mind is a good question that I don’t think she ever answered.)
Further furthermore, when it came to the legalization of homosexuality and gay marriage she blithely went down the Roe route. Both Lawrence v. Texas (2003), which gave sodomy the status of a constitutional right (so to speak), and Obergefell v. Hodges (2015), recognizing gay marriage, cited the infamous “privacy penumbra” doctrine first enunciated in Griswold v. Connecticut (1965), though they did not rely on it exclusively.7 In both cases, the Court’s majority opinion was written by Justice Kennedy. Ginsburg concurring without offering any opinion of her own. If she had any reservations about the use of the “right to privacy” in these decisions she kept them to herself.
Power is intoxicating, and so much of the cult that has developed around the Supreme Court is this sort of unmeasured use of its power, substituting its judgment for the 50 state legislatures whenever it so pleases, in effect ruling that both Congress and state legislatures do not have the right to make “bad” decisions. If the Court had ruled the other way in Sullivan and Obergefell, virtually the entire gay community would have been shattered. “The Supreme Court HATES me!” The Court should not be regarded as the unique depository of a sort of semi-divine wisdom, as kings once were, but unfortunately it is.
The modern-day “Cult of the Court” goes back to Brown v. Board of Education, not the first attack on America’s systemic racism, but easily the most famous. Brown did mark an essential turning point in American history—a turning point that the Republican Party is now struggling to reverse—but what “worked” in Brown—and its effect was not so much to “solve” anything as to initiate a struggle that has lasted 65 years and is a long way from being finished—does not carry over to every social ill that liberals wish to address.
And yet. And yet. It’s “funny” that Roe v. Wade followed legislative action in both California and New York, then the country’s largest two states, dramatically increasing women’s access to abortions, while prior to Obergefell, no state legislature had acted favorably on gay marriage. All the action at the state level had come from a handful of “enlightened” old folks in robes, handing down their wisdom from on high. And yet gay marriage quickly came to be accepted, to the frustration of the few who thought Obergefell was another Roe. Clearly, state legislatures “wanted” the Court to take gay rights issues off their plates, a sort of game that politicians are often only too happy to play. But easy wins are inevitably intoxicating. If we can right one wrong with, in effect, the stroke of a pen, or magic wand, why not others? Power corrupts, and absolute power corrupts absolutely.
While Ginsburg could be too facile in finding new rights in the Constitution, she had an uneven record when it came to protecting ones that were clearly stated. In his excellent article Supreme Court Precedent Killed Breonna Taylor, David French explains how a series of Supreme Court decisions have given police departments the green light to engage in “no-knock” raids that endanger rather than protect the public, encouraging a militaristic approach to law enforcement that has repeatedly led to tragedy, and entirely unnecessary tragedy at that. Ginsburg participated in all of these cases. Two of the most important decisions, Wilson v. Arkansas and Richards v. Wisconsin were unanimous. Ginsburg also voted with a unanimous Court on several occasions to uphold the notorious doctrine of “qualified immunity”, which makes it difficult (to say the least) to hold police officers responsible for even blatantly criminal actions, “discussed” by French in his excellent article End Qualified Immunity. She also voted with a unanimous Court in County of Los Angeles v. Mendez, reaffirming, says French, the “right” of the police “to shoot armed citizens, even when the police (not the citizen) are violating the Constitution.”
Ginsburg’s record in the defense of Fourth Amendment rights was not entirely bad—not nearly as bad as self-proclaimed Fourth Amendment champion Nino Scalia. The American Conservative’s Matt Purple points out that Ginsburg was the sole dissenter in Kentucky v. King, which effectively gave police the right to break down the door whenever they hear “movement” in a “suspicious” apartment without having gone to the bother of obtaining a warrant. She also dissented in the Court’s execrable decision, Hudson v. Michigan, that allowed the use of evidence obtained in illegal “knock and announce” police raids, the smirking majority opinion written by her good buddy. Justice Scalia, which I eviscerated here.8 I guess there are things that are more important than opinions, Nino, but opinions are pretty goddamn important too.
Afterwords—Extended Constitutional Detour and Frolic
Way back in the sixties, the Warren Court issued a series of rulings, culminating in Reynolds v. Sims, that first required states to periodically reapportion their legislatures—some hadn’t done so for decades—and also to apportion both houses according to population, so that urban areas would have equal representation in both. Justice Harlan wrote an intellectually impressive dissent in the first of these cases, Baker v. Carr, pointing out that the Court was going well beyond the language of the Constitution. Justice Frankfurter, in his dissent, warned the Court against “entering the political thicket”.
Yet the impact of these intellectually dubious decisions was entirely positive. State legislatures became more responsive to their populations, who had less reason to turn to the federal government. If states had been allowed to continue down the anti-democratic path that some had chosen, state government might have become a joke, as useless as an appendix and as likely for ultimate amputation. During the first days of the Reagan administration, when there was much talk of “devolution”—giving programs and powers currently exercised by the federal government “back” to the states—it was frequently argued that the “new” state governments, unlike the old, were responsive to the needs of their entire populations rather than under the control of entrenched cliques and “courthouse gangs”. There is no escape, in my mind, from a “living” constitution, particularly because, as Justice Scalia himself acknowledged, the Constitution is now almost impossible to amend—states with a mere 13% of the nation’s population hold veto power over any change, an imbalance that will almost surely become even more grotesque in the future. In any event, the more a constitution is amended, the less is it respected.
Justice Scalia’s beloved “dead” Constitution is as much a construct as Justice Ginsburg’s living one, as evidenced most spectacularly by a recent majority opinion delivered by Scalia’s fellow “textualist”, Justice Clarence Thomas, in FTB v. Hyatt, which I dismembered here. In that decision, Thomas quotes heavily from the historical record of the development of the Constitution to obtain what he believes was the “Founders’” understanding of the notion of “state sovereignty” in the Constitution, not as it applied to the United States government but rather the governments of the several states. Since the basic idea of textualism is that the interpretation of the law is primarily based on the ordinary meaning of the legal text—in this case, the Constitution—it is necessary to consult the constitutional debates and other sources to determine just what the concept of “state sovereignty” meant to the “Founders.”9
The great stumbling block for Thomas, in obtaining the definition that he wants (which, he embarrassedly admits, is nowhere stated explicitly in the Constitution), is the first consequential Supreme Court decision in our history, Chisholm v. Georgia (1793), in which the Court found, by a 4-1 majority, that the states’ sovereignty was significantly limited by the new Constitution, exactly the result the good justice didn’t need, and which he hurriedly explained away: “The Court blundered” is all he says—“blundered” because he doesn’t like the result.
But how could the Court “blunder” in its understanding of the term “state sovereignty” as understood and used by the Founders when the four justices who “blundered” were “Founders”? The Chief Justice was John Jay, one of three authors of the “sacred” (in textualists’ eyes) Federalist Papers (though he wrote by far the fewest “papers” of the three). How could they not know the “correct” meaning of the concepts of a document which they themselves wrote!
But of course the hypocrisy of the “overt textualists”—Scalia and Thomas—had already been exposed back in 2000, in Bush v. Gore, along with their co-conspirators, Chief Justice William Rehnquist, Justice O’Connor, and Justice Anthony Kennedy, who all voted to shut down the Florida recount and award the presidency to George Bush.10 Ginsburg had voted against this action, as well as the 7-2 ruling by the Court that Florida voting procedures violated George Bush’s rights under the perhaps too handy “equal protection” clause. Unfortunately, Ginsburg did vote with the majority (making it unanimous) in an earlier case (eight days earlier)11 effectively “warning” the Florida Supreme Court that Big Brother was watching, an egregious power grab that Ginsburg helped legitimize. If Ginsburg had dissented in the earlier case, perhaps (a big perhaps) the “Shameless Five” might have lacked the courage to actually hand the election to Bush as they ultimately did.
1. “People” (people who aren’t like me) have a weakness for this sort of “magical” thinking, particularly—to generalize wildly and irresponsibly—when it comes to women. There were similar cults surrounding Nancy Reagan and (God help us) “Princess” Di, and one is certainly forming around Michelle Obama.
2. I am 12 years younger than Ginsburg. When I entered law school (Pitt, not Harvard) in 1970, about 10 percent of my class were women. A woman two years ahead of me told me she was one of two women in her class. In two more years, the incoming class was at least 30 percent women. When I got to Pitt I felt like I was back in the army, something I did not much appreciate. By the time I dropped out, the place looked like Oberlin.
3. I’ve read that Chief Justice William Rehnquist had very close friendships with his liberal adversaries on the Court and that Clarence Thomas is the only justice who is friendly to the “little people”—gets to know the other justices’ clerks’ names every year and chats easily with them about their personal lives, something none of the other justices do. So all my bêtes noirs are sweethearts!
4. The McNabb case dealt with the appeal of two men convicted of murdering a federal officer. Said Frankfurter, “Determination of these questions [raised by the case] turns upon the circumstances relating to the admission in evidence of incriminating statements made by the petitioners.”
5. Also according to Guttmacher, only Pennsylvania forbade all abortions—that is to say, only Pennsylvania took the current “Republican” position that a human fetus is a fully protected human being from the moment of conception.
6. The equal protection clause of the fourteenth amendment reads as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” According to Rosen, in the interview referenced in the text, Ginsburg concluded that “equal protection of the laws” requires that states not pass any legislation preventing women from functioning as the economic equals of men. This strikes me as extremely facile reasoning. “The law in its majesty,” said Anatole France, “forbids rich and poor alike from sleeping under bridges.” Does the equal protection clause require states to build housing for the poor? Make higher education free—and not only tuition but also free textbooks, computers, etc., not to mention “room and board”—so that poor students don’t bear the economic burdens that the rich escape? In addition, Ginsburg of course makes no effort to address the moral and legal issues related to the legal status of the fetus, presumably because she doesn’t believe there are any. People who say that there are such issues are either stupid or not acting in good faith and thus can be ignored. It’s a little “funny” that Ginsburg could be good friends, as clearly she was, with someone as stridently medieval as Scalia. Presumably, she assumed that he was simply “lying” when he talked about “ensoulment” and such like and that somehow that didn’t bother her. If you take all this stuff personally you’ll go crazy. And people will stop inviting you to parties.
7. Justice William Douglas wrote the majority opinion in Griswold. It is “interesting” that Douglas wrote a “diffident dissent” in United States v. Classic (1941), uncomfortably taking the side of southern racists by rejecting the majority decision holding that “white primaries” held in southern states (primaries that were open to whites only) violated federal statutes protecting the right to vote. While the Constitution gave Congress the power to enact statutes forbidding such primaries, Douglas argued, the existing laws did not do so: “It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated, and then to particularize it as a crime because it is highly offensive.” Apparently, the penumbras of statutes and constitutions cast different shadows. Well, Justice Scalia allowed himself the privilege to change his mind when he found it convenient to do so, and what’s sauce for the conservatives is sauce for the liberals as well. (Thanks to the good folks at Wikipedia for finding this, because I surely never would have found it on my own.)
8. Scalia “explained” that exclusion of evidence was no longer needed to discourage illegal police raids because today, unlike the past, police departments are much more professional than they used to be. “Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline.” You liberals believe in progress, doncha? Well, we got progress! Scalia, in my opinion, made a point of encouraging illegal police searches—championing, for example, the use of police dogs to justify searches. Reason’s Jacob Sullum gave Nino the beatdown he deserved in “Scalia Wonders Why on Earth Police Would Want a Dog That Lets Them Search Anything They Want”.
9. Scalia, when speaking of statutory rather than constitutional interpretation, wrote in Green v. Brock Laundry Mach. Co., “[t]he meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility that, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.” In the case of the Constitution, of course, this means understanding what was “most likely to have been understood” by the whole Constitutional Convention convened in 1787.
10. Bush v. Palm Beach County Canvassing Board.
11. University of Chicago Law Professor Geoffrey R. Stone explodes the Court’s “reasoning” in this disgusting decision here.
