Bench Memos

Law & the Courts

There She Goes Again

This CNN article on a new book of conversations with Justice Ruth Bader Ginsburg shows that Ginsburg continues her astounding practice of public statements that seem difficult to reconcile with the judicial duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The article quotes Ginsburg as saying that she’s “skeptically hopeful” that the Court’s abortion precedents will survive, as Roe “has pretty strong precedential weight by now.” Asserting that “good precedent [sic; hardly an apt description of Roe] built up over years should survive challenge,” she asks, “And how would the chief justice want his court to be perceived when history is told years later?”

I would hope that Chief Justice Roberts would want “his court” to be perceived as one that didn’t blink at correcting a gross constitutional error that has corrupted American politics for more than four decades and as one that wasn’t cowed by the sort of public intimidation that Ginsburg and others try to wreak.

Ginsburg goes on to describe the Roberts Court “as one of the most activist in history”—“based,” according to the article, “on instances when it has overturned legislation passed by Congress.” Jonathan Adler addressed this canard of Ginsburg’s some years ago. As he pointed out then, apart from being unsound, Ginsburg’s claim is curious as she “votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy.”


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