Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 12

(Kevork Djansezian)

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country. (Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what the American public will acquiesce in are closely linked to her view of what the Court should impose.)

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