Bench Memos

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Ginsburg’s Threat


Justice Ginsburg’s recent speech in South Africa defending the Supreme Court’s increasing use of foreign law in construing the meaning of the Constitution is essentially the same speech that she delivered a year ago—and that I critiqued in this NRO essay, “Alien Justice: Ruth Bader Ginsburg vs. the Declaration of Independence.” Among other things, Ginsburg repeats her crude, racially charged attack on originalists. Displaying an expansive misunderstanding of the proper role of a justice, she also expresses her regret that the United States has not ratified a controversial international convention, and she criticizes congressional resolutions that would declare that judicial interpretations regarding the meaning of the Constitution should not be based on foreign legal materials unless those materials inform an understanding of the original meaning of the Constitution.

One new element of Ginsburg’s speech has, however, attracted media attention. Beyond expressing her view that it is “disquieting” that the congressional resolutions “have attracted sizable support,” Ginsburg adds:

And one not-so-small concern — they [the congressional resolutions] fuel the irrational fringe. A personal example. The U.S. Supreme Court’s Marshal alerted Justice O’Connor and me to a February 28, 2005, web posting on a “chat” site. It opened:”Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”
It is a detestable fact of modern life that public officials face death threats. The cowards and villains who make such threats should be investigated and prosecuted. But it also should not go unremarked that Ginsburg somehow saw fit to charge that entirely responsible congressional resolutions had “fuel[ed]” the threat that she received. Put aside the fact that Ginsburg offers not an iota of evidence to establish the linkage that she asserts. Even if one were to assume that the idiot who posted the comment on the chat site had been motivated to do so by the congressional resolutions, what fair basis is there to impute responsibility for that idiot’s actions to the supporters of the resolutions?

Worse, Ginsburg’s comment leaves open the implication that anyone who criticizes her views bears responsibility for any threats relating to the same matter that some idiot might make. Perhaps Ginsburg did not intend this implication, though the fact that her comment came in a prepared speech makes it quite plausible that she did.

Our system properly deals with threats to public officials by investigating and prosecuting the perpetrators and by providing needed security to the officials who have been threatened. This system is, unfortunately, far from perfect. But it would not be improved by public officials’ attempting to use the fact of threats against them to chill vigorous criticism of their actions. With her ACLU pedigree, Ginsburg surely ought to understand that.

(Mark Levin has more on this topic.)


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