On Slate, Mark Joseph Stern takes me to task for my post yesterday that presented Maureen Dowd’s account of Justice Ginsburg’s latest public indiscretion on the pending marriage cases. I offer this brief response:

1. Stern says that my post was “an acidic attack on Ginsburg.” Huh? My post consisted almost entirely of (a) a set-up paragraph that summarized a recent essay of mine, and (b) quotes from Dowd’s article. I can understand why Stern, a vocal pro-SSM advocate, doesn’t welcome my post, but I don’t see anything in it that can fairly be called “acidic.” (But, hey, Chris Geidner yesterday called my post “nefarious,” so maybe words don’t mean what they used to.)

2. The sentence that Stern particularly objects to—on substantive grounds, not on tone—is my closing one, in which I wrote:

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.

Stern calls my statement (or, rather, my “edict”) “doubly puzzling.” I’m happy to address both puzzles.

First, Stern imagines that Ginsburg’s repeated hints about how she and the Court will rule are of the same nature—get this!—as Justice Thomas’s meeting with “two vehemently anti-LGBTQ, anti-abortion activists” (Princeton professor Robert P. George and the Heritage Foundation’s Ryan Anderson), having a picture taken with them, and complimenting one of them on his “anti-abortion tie.”

Well, let’s see, if I were complaining about Ginsburg meeting with pro-SSM advocates, having her picture taken with them, and complimenting one of them on his pro-abortion tie, Stern might have a point. But what I’ve objected to—and the basis for my argument that Ginsburg is ethically obligated to recuse herself—is that, in violation of her avowed obligation to give “no hints, no forecasts, no previews” about how she might vote, she has instead repeatedly telegraphed both how she will vote in the pending marriage cases and how she expects the Court’s majority to vote.

I don’t see how Thomas’s meeting and picture (and comment about a tie!) can remotely be compared with Ginsburg’s public statements. Indeed, I have never suggested that Ginsburg’s manifest pro-SSM sympathies (Stern calls her “a friend of the queer community”) require her recusal, as they arguably speak only to her policy positions, not to her constitutional views on (as I’ve put it) “an issue that she has never before addressed in a judicial opinion.”

Second, Stern objects that “National Review has been publishing a lot of goofy stuff lately about rejecting judicial supremacy” and that we opponents of judicial supremacy “really only seem interested in letting states nullify rulings [we] don’t like.” The record will demonstrate that Matt Franck and I have been objecting to the myth of judicial supremacy from the very inception of Bench Memos ten years ago—see, for example, this article of mine from 2006—so there’s nothing recent about our positions. On the other hand, I don’t believe I’ve ever said that states may “nullify rulings they don’t like,” as I don’t think I’ve ever held that view. (To be sure, lots of proponents of the myth of judicial supremacy fling the nullification charge at anyone who exposes the myth.)

Stern contends that “selective judicial supremacy isn’t honest constitutionalism” but is “just opportunistic sophistry.” But I don’t support “judicial supremacy” selectively or otherwise. If (to use Stern’s example) folks want to challenge the Court’s rulings on campaign-finance restrictions, I won’t criticize them for daring to contest judicial supremacy (though I might well disagree with them for getting the First Amendment wrong).

(Stern, I’ll note, is very generous in saying that I “was once a brilliant conservative commentator” and in lamenting that my “once-sharp prose” has supposedly become “bitter bluster.” I make no claim to ever having been brilliant. For better or worse, though, I think that I have been consistent, both in substance and in tone.)