Follow Main Street Monroe: Facebook Google+ Twitter

 
  New Posts New Posts RSS Feed - The Troubling Ruth Bader Bias
  FAQ FAQ  Forum Search   Events   Register Register  Login Login

The Troubling Ruth Bader Bias

 Post Reply Post Reply
Author
John Beagle View Drop Down
Voice Official
Voice Official
Avatar

Joined: Nov 21 2000
Location: Monroe, Ohio
Status: Offline
Points: 19664
Post Options Post Options   Thanks (0) Thanks(0)   Quote John Beagle Quote  Post ReplyReply Direct Link To This Post Topic: The Troubling Ruth Bader Bias
    Posted: Feb 23 2018 at 10:39am


The Troubling Apotheosis of the Notorious RBG

by John O. McGinnis

The adulation of Ruth Bader Ginsburg, which appears ever growing on the left, raises concerns about the left’s model of a justice and of justice.  Ginsburg is the jurist currently on the Court who has most clearly crossed the line to become involved in partisan politics.  She has offered no general contributions to constitutional theory, unlike the Antonin Scalia, the only modern justice who has a similar ideological following. And she is not a fine stylist and clever doctrinalist of the caliber  of Scalia and of Chief Justice John Roberts or of a justice generally thought to be on the left of the Court, like Elena Kagan.

Let’s begin with her extracurricular pronouncements. She opined multiple times on the 2016 Presidential election, denouncing the presumptive candidate of one of our major parties as a fraud. She also suggested, like many silly celebrities, that it might be time to move abroad if he won. She did eventually apologize for these comments, but they remain on the record as the most outrageous, publicly partisan sally by a justice in modern times. No one else comes close.  They raise continuing questions about her objectivity in deciding cases involving the Trump administration and thus damage the legitimacy of the Court.

And that is not the end of her inappropriate comments. She has revealed how Justice Scalia voted in United States v. Texas and how Elena Kagan would have voted in Fisher v. Texas, had she not been recused. She makes sly digs at President Trump and at her new colleague, Justice Neil Gorsuch.  And she will not give up punditry on the 2016 election, blaming Hillary Clinton’s defeat on sexism. This is the model of how a justice should not conduct herself.

No doubt the left wants to elevate to the pantheon a figure equivalent to the late Justice Antonin Scalia, whose writings and ideas remain vibrantly in the news and in the law reviews two years after his death. But the problem is that Justice Ginsburg is neither the jurisprude nor  the writer that he was. Indeed, it is notable that she has not substantially contributed to the general theory of constitutional or statutory interpretation. Scalia did so, playing an important role in redirecting originalism away from original intent to original public meaning and moving the Court toward statutory textualism. (I have reservations about the latter position, but it was consequential and well argued).  The strongest evidence of his historical significance is that even law professors opposed to him spend a lot of time trying to refute his ideas. It is true that Justice Ginsburg has embraced the use of foreign and international law, but even had she ably defended this position—which she has not—that is hardly a general contribution. Here she is to be contrasted with President Clinton’s other appointee,  Justice Stephen Breyer, who wrote an entire book Active Liberty justifying his approach to constitutional law.

Other justices on the left side surpass her in other ways. As I have written elsewhere, Elena Kagan is both a fine stylist and the only equal of John Roberts on the current Court when it comes to the smoothness of deploying doctrine.  But Kagan and Breyer are by political science measures not nearly as far to the left as Ginsburg in their voting patterns.  And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.

About the Author John O. McGinnis
John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

Fair Use: Posted for political discussion.
The privilege of a lifetime is being who you are.
-Joseph Campbell
Back to Top
John Beagle View Drop Down
Voice Official
Voice Official
Avatar

Joined: Nov 21 2000
Location: Monroe, Ohio
Status: Offline
Points: 19664
Post Options Post Options   Thanks (0) Thanks(0)   Quote John Beagle Quote  Post ReplyReply Direct Link To This Post Posted: Feb 23 2018 at 10:44am
...She opined multiple times on the 2016 Presidential election, denouncing the presumptive candidate of one of our major parties as a fraud. She also suggested, like many silly celebrities, that it might be time to move abroad if he won. She did eventually apologize for these comments...
The privilege of a lifetime is being who you are.
-Joseph Campbell
Back to Top
 Post Reply Post Reply
  Share Topic   

Forum Jump Forum Permissions View Drop Down

The Voice | Weather | Advertisers | Advertising Information | Lending Library | Monroe Church Directory

Archived Monroe News From: 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | 2010 | 2011

Website Design © Xponex Web and Media Services | Contact | Terms of Use | Copyright ©2012 MainStreetMonroe.com