Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 25

2013—Ah, yes, Justice Ruth Bader Ginsburg, champion of judicial restraint.

Two months after providing the fifth vote to invalidate the federal Defense of Marriage Act, Ginsburg brazenly observes in a New York Times article that if judicial activism is “measured in terms of readiness to overturn legislation,” her conservative colleagues have made the Roberts Court “one of the most activist courts in history.” Her claim, even on her own terms, is wrong. But the hyperactivist Ginsburg is also deploying a neutered meaning of the term judicial activism that fails to distinguish between correct and incorrect invalidations of democratic enactments.

Ginsburg’s claim is reminiscent of the leftist charge during the Cold War that the CIA and the KGB were engaged in morally equivalent acts of spycraft. As William F. Buckley responded to that charge, that’s like “saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.”

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