Bench Memos

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Ginsburg’s Voice


Linda Greenhouse’s article in today’s New York Times—“Oral Dissents Give Ginsburg a New Voice on Court”—is quite comical, though unintentionally so.  Greenhouse, playing a historian of the future, begins her piece with this portentous assertion:  “Whatever else may be said about the Supreme Court’s current term …, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.”  Ah, yes:  the Term of the Mouse that Screeched.  That will surely be how the year is remembered. 

Greenhouse’s article centers on the fact that Ginsburg has twice this term read her dissents from the bench—first in April’s partial-birth ruling, then in this past Tuesday’s Title VII ruling (in Ledbetter v. Goodyear Tire).  As Greenhouse puts it, “To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong.”   

I can imagine how a fierce partisan of abortion like Ginsburg could mistakenly regard the Court’s partial-birth ruling as “profoundly wrong”.  But can the Court’s Title VII ruling come anywhere close to meeting that standard?  Not even the Washington Post thinks so.  In its house editorial today, the Post agrees with Ginsburg’s policy views.  But, even without taking note of the precedents on which the majority relied, it regards the statutory question in the case as “a difficult question” and forms no opinion on who “had the better reading of the statute.”   

Greenhouse speculates that “there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style.”  Ginsburg, Greenhouse says, “may have concluded that her side’s interests are better served by appealing not to the court’s majority but to the public.”  According to one of Ginsburg’s “acquaintances” whom Greenhouse quotes, “She’s sounding an alarm and wants people to take notice.” 

It’s telling—and damning—that even Ginsburg’s allies regard her conduct as politically motivated.   

Democratic presidential candidates have identified Ginsburg as their favorite justice, and, in one respect at least, I hope very much hope that she continues her political activism.  As Americans go the polls in 2008, I would love nothing more than for them to have foremost in mind the stark differences between the sorts of Supreme Court appointments the presidential candidates would make.  As I outlined in “Alito vs. Ginsburg”, I am confident that the American people would have no difficulty discerning which justices better understand American values and ideals and would be more faithful to their proper role in our constitutional system.

Tags: Whelan


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