Bench Memos

Law & the Courts

More of Injudicious Ginsburg

As I pointed out in an NRO essay in February, Justice Ginsburg used to understand that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might vote” and that violating that obligation “would display disdain for the entire judicial process.” In violation of that obligation of impartiality, she has instead signaled at every turn both how she will vote in the pending marriage cases and how she expects the Court’s majority to vote. (See examples in the linked essay and in this day-after post.)

Per the New York Times Maureen Dowd, the latest instance came over this past weekend:

With a sly look and special emphasis on the word “Constitution,” Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.


No one was sure if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage is constitutional.


But the guests began applauding loudly, delighted either way.

Note that, by Dowd’s account, the only alternatives that the guests considered plausible were that Ginsburg was “emphasizing her own beliefs” on the constitutional issue or that she was “giving a hint to the outcome of the case.”

Ginsburg’s failure to recuse herself is just one of many reasons why no one should be expected to regard as legitimate a Supreme Court decision inventing a constitutional right to same-sex marriage.

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