Bench Memos

Law & the Courts

A Limited Defense of Justice Ginsburg, Blabbermouth—Part 2

As promised, I’ll offer a defense of sorts of Justice Ginsburg’s latest episode of astoundingly indiscreet blabbing:

Rules and norms of judicial ethics arose to ensure, as much as possible, both the reality that judges are impartial and the appearance that they are. But the “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in).

Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.

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