Ed, one of the odder observations of Justice Ginsburg was this:
She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.
“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”
That’s deluded. The first European nation to embrace judicial review above parliamentary sovereignty — and, indeed, the first country in the world to create a separate constitutional court for that purpose — was Austria, which did so in 1920, after the fall of the Habsburg monarchy. It was suspended in 1934 and did nothing to prevent Austria’s contribution to the Holocaust.
Italy’s constitutional court dates from the abolition of the monarchy after the Second World War; France’s constitutional court dates from the inauguration of the Fifth Republic in 1958; Belgium’s from the the kingdom’s transformation from a unitary state to a federal state in the 1980s; Hungary’s, Bulgaria’s, etc, from the collapse of Communism 20 years ago. In other words, they’ve nothing to do with the Holocaust, but are all responses to internal crises of one degree or another. It is very depressing to hear a constitutional judge and legal scholar resort not merely to an emotive argument but a laughably false one about what’s supposed to be her specialized area of interest.