Bench Memos

Selective Silence

In this Slate essay (a version of which also appeared in Sunday’s Washington Post), Dahlia Lithwick points out that, notwithstanding their willingness to talk about just about everything else publicly, Justices Ginsburg and Breyer have drawn the line sharply on abortion and other “explosive moral issues”.  “Stop!  We’re not going to talk about abortion,” said Ginsburg in one interview.  “No, not any question to do with abortion,” said Breyer in another.  Lithwick maintains (correctly, I think) that the line that they have drawn between issues that they will talk about and those that they won’t is not principled.

Lithwick assures her readers that “there is certainly a sound constitutional basis” (oh, yes, of course) for the decisions of Ginsburg and Breyer to trump the political processes on abortion and other moral issues, and she complains that the “really tough cases are, invariably, the hardest to explain” in a “sound bite”.  But the fact that Breyer wrote a whole book about the “active liberty” of citizens without even trying to reconcile his theory with the judicial power grab on the abortion issue would indicate that limitations of time and space are not responsible for the failure to explain.  The theory suggested by Occam’s razor is far more plausible:  Ginsburg and Breyer won’t try to justify their positions publicly, no matter how much time they are afforded, because they can’t do so in a manner that intelligent citizens would find persuasive.


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