Judicial activism means inventing new rights (abortion, for example), disregarding the plain text of the Constitution (e.g. holding all death-penalty statutes unconstitutional) or rewriting the statute before the court (as the chief justice did in such dramatic fashion for Obamacare by reinterpreting the tax/fine portion of the statute and devising a new Medicaid opt-out for the states, both pure inventions of the chief justice). The habits (inventing rights, ignoring the text of the Constitution and contorting statues) have characterized Ginsburg’s record. It is not “activist” to strike down a statute that fails to comport with the Constitution. And it is not restraint to allow Congress (e.g. on McCain-Feingold) to run roughshod over rights spelled out in the Constitution (free speech).
You can’t help but see Ginsburg as stuck in her pre-court mode, an activist for left-leaning legal causes. (“There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.”) Ummm. It is not hard to see that her judicial philosophy boils down to “liberal causes good, conservative ones bad.” That, rather than judicial restraint or activism, explains her desire to strike down the Defense of Marriage Act (in total, unlike the restrained approach of Kennedy) while keeping alive campaign-finance reform, Obamacare and the 50-year-old standard for pre-clearance in section 5 of the Voting Rights Act.
What’s baffling about Justice Ginsburg’s comments is that by her own definition, her vote to strike down the Defense of Marriage Act just last term was “activist.” But I don’t see any handwringing about her role in the opinion.
Her insistence that Roe’s lessons favoring a more stepwise approach to inventing new rights don’t apply to the same-sex-marriage field is not only puzzling, but suggests that the recent DOMA decision was in fact pure activism, by any definition. The only explanation for Justice Kennedy’s incoherent decision is that the justices were trying (in vain) to find a reasonable argument for proceeding step-by-step rather than nationalizing same-sex marriage outright. If that wasn’t it, then it was truly no more than a compromise position between four justices who would have found an equal-protection violation and one who wanted to have his cake and eat it too by outlawing DOMA and leaving other laws intact. Hardly a principled counter to the alleged “activism” of the Roberts Court.
Justice Ginsburg’s willingness to engage in what she deems “judicial activism” when it suits her policy aims is not limited to Windsor. It turns out that she’s actually more willing to nullify Congress than many of the justices that she has served with. In 2008, Professor Linda Keith studied how much judges defer to Congress when evaluating federal legislation. Over the span of 200 years, justices voted to “nullify” Congress an average of 23 percent of the time, when given an opportunity. Justice Ginsburg did this 43 percent of the time, 20 percent more than the average justice, and more than did six of the eight justices she had served with at the time of the study. She more than doubled Chief Justice Rehnquist’s rate of overturning acts of Congress.
We should see Justice Ginsburg’s comments for what they are: an entirely impressionistic political attack on the conservative justices, probably stemming from her frustration with assigning what she sees as far too many minority opinions. As Paul Mirengoff put it, “we can’t expect a left-wing partisan like Justice Ginsburg to let the facts stand in the way of a good rant.”