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Justice in Drag
Ruth Bader Ginsburg did a great many interesting and impressive things in her life, but she never did the one thing she probably really should have done: run for office. Ruth Bader Ginsburg wasn’t an associate justice of the Supreme Court — not really: She was a legislator in judicial drag.
You need not take my word on this: Ask her admirers. “Ruth Bader Ginsburg had a vision for America,” Linda Hirshman argues in the Washington Post. What was her vision? “To make America fairer, to make justice bigger.” That is not a job for a judge — that is a job for a legislator. The job of making law properly belongs to — some people find this part hard to handle — lawmakers. Making law is not the job of the judge. The job of the judge is to see that the law is followed and applied in a given case. It does not matter if the law is unfair or if the law is unjust — that is not the judge’s concern. If you have a vision for America, and desire to make the law more fair or more just, then there is a place for you: Congress. That is where the laws are made.
This distinction is an important one. As you may have noticed over the course of the summer, Americans do not agree on everything. Some of us have ideas about what is good, decent, fair, just, wise, intelligent, prudent, and necessary that are radically different from the ideas other Americans have about what is good, decent, fair, just, wise, intelligent, prudent, and necessary. Democracy is not good for very much, but democratic institutions are how we settle those disagreements. Even the antidemocratic elements of U.S. government, such as the Bill of Rights, which put certain questions beyond the reach of mere temporary majorities, came out of democratic institutions and were implemented through a democratic process. It is from that that they derive their legitimacy. Democracy has its shortcomings — mostly rooted in the fact that human beings are universally fallen and in the majority savage — but the alternative is bonking each other over the head over every disagreement.
Put another way, the alternative is might makes right — which is exactly the kind of “jurisprudence” Justice Ginsburg and others of her kind have long practiced. There isn’t a goddamned word about abortion or gay rights in the Constitution, and it is absurd to think that such rights had been hiding there, lurking in the ol’ penumbras, since the 18th flippin’ century, waiting to be discovered by a committee of progressive lawyers who somehow see the “real” Constitution that went completely undetected by the men who wrote and ratified the document we actually have. That should be obvious even to people who support abortion or gay rights or other things that have been magically discovered in the Constitution. For the New York Times, Justice Ginsburg was a “feminist icon.” And she was — but it was not her job to be a feminist icon or to impose feminist ideology — or any other ideology — on the law and on the American public, substituting her own desires and preferences for those that are the result of the actual democratic process, daft as it often is.
Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.
The real fissure running through the Supreme Court is not between so-called liberals and notional conservatives, but between those who believe that judges are superlegislators empowered to impose their own vision on society and those who believe that judges are constrained by what the law actually says. The latter is the position of the Federalist Society and many lawyers associated with it, and that this position — that the law says what it says, not what people with power wish for it to say — should be controversial is an excellent indicator of why faith in our institutions has eroded so deeply. “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court,” reads the line over Michelle Goldberg’s New York Times column. Read that and ask yourself who the fanatic really is.
(And: Whose seat?)
This should be obvious enough even to people who share Ginsburg’s ideology and political preferences. Maybe you think that the federal law should enshrine an unassailable right to abortion, or that the Bill of Rights shouldn’t protect the right to keep and bear arms as broadly and explicitly as it does. Many people would agree with you, and there are reasonable if erroneous good-faith arguments for those positions. But that is not what the law actually says. So, take it to the voters. In the case of abortion, that would have meant a state-by-state fight in the legislatures, which probably would have resulted in an abortion regime that is neither as permissive as the one we have nor as restrictive as abortion opponents would like, i.e., one that more closely resembles the actual position of the American electorate. (A large majority of Americans believe that abortion should be legal in the first trimester, and even larger majorities believe it should be restricted in the second and third trimesters.) In the case of gun control, proceeding legitimately would mean repealing the Second Amendment in order to impose the restrictions that progressives want but that are prohibited by the Bill of Rights. Yes, both of those would be long, hard, ugly, and frustrating fights that would almost certainly leave both sides partly unsatisfied — i.e., democracy.
It is, of course, much more tempting to get five allies on the Supreme Court to pretend that what you want is already mandated in the law, waiting to be discovered. And that was Justice Ginsburg’s specialty. Her most famous decision, outlawing the Virginia Military Institute’s single-sex admissions policy, was exactly the kind of thing you would expect from a “feminist icon” but shoddy — indeed, preposterous — as law. As Justice Antonin Scalia notes in his scathing dissent in the VMI case, other publicly funded military academies had changed their admissions policies, “not by court decree, but because the people, through their elected representatives, decreed a change.” What Justice Ginsburg was engaged in by inventing a prohibition on single-sex military academies was “not the interpretation of a Constitution, but the creation of one.”
Maybe Ginsburg was right to believe what she believed. That is irrelevant. The question is not whether VMI should have been admitting women, but whether the Constitution prohibited VMI’s policies and empowered activists such as Justice Ginsburg to replace those policies with others more to the liking of the nation’s progressive lawyers. It didn’t and doesn’t. Neither the text nor the history nor practice justified Justice Ginsburg’s decision — only her own sense of morality did. Her opinion is not legal reasoning — it is legal decoration, reverse-engineered and fitted to the decision she was committing to making for political rather than legal reasons.
Oh, but everything is political! they’ll say. I do not believe that judges are incapable of actually doing their jobs even if that means following the law to results other than the ones they would prefer — Justice Scalia’s account of the flag-burning issue is one example showing that it can be done the right way — but doing so would mean trying to do that job rather than treating the federal bench as a stage for score-settling, advantage-seeking, and constituent-servicing. If you don’t believe that judges should be constrained by the law — that power is power is power and that’s that — then you don’t have much of an argument against Donald Trump and Mitch McConnell filling this seat, which is not “Ginsburg’s seat.” And unlike Justice Ginsburg, who made up the Constitution as she went along, in this case Trump and Senate Republicans would be acting within their plain constitutional powers. In contrast to Ruth Bader Ginsburg, feminist icon, they would be doing their jobs.
The timing of Ginsburg’s death is a political inconvenience for Democrats — them’s the breaks. Trying to convert this into a question of principle is silly and dishonest. Yes, lots of Republicans said last time around that we shouldn’t confirm a justice right before an election. Lots of Democrats said last time round that we should. Handing out indictments for hypocrisy in Washington is like writing up people in New Orleans at Mardi Gras for public intoxication. Nobody doubts that the charge is a valid one, but, please, spare us the shock and sanctimony.
And after the slandering of Robert Bork, Clarence Thomas, and Brett Kavanaugh, arguing that Republicans should decline to move forward on the nomination for comity’s sake is laughable. Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second. Nor have they ever shown themselves interested in replacing “conservative” justices — meaning those who are not open partisan campaigners on the model of Ginsburg — with conservatives or moderates in the name of ideological balance. The Democrats put left-wing activists on the Court when they get the chance, even if, like Elena Kagan, they have to lie their way through their confirmations to get there. Democratic complaints about political hardball after the outrageous campaign of fantastical fiction and slander directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is threatening to create a constitutional crisis through a Court-packing scheme if a Democratic president and Senate are elected, threatening (more) riots and (further) arson, and other attempts at extortion.
On the matter of the Court-packing endorsed by Michelle Goldberg et al., Democrats should be careful about the precedents they set. Republicans may learn slowly, but they learn. Democrats spent generations engaged in partisan gerrymandering and then suddenly got religion on that subject when Republicans got good at it. They didn’t think their slander of Robert Bork and the politicization of the nomination process would come back to bite them, but it did. Mitch McConnell believed the politics were on his side, and he was right. A Democratic Senate might reorganize the federal courts in a way that gives their party a momentary advantage — which is banana-republic stuff, but that is what Michelle Goldberg of the Times advocates, and she is not alone — but there will be a Republican majority again. There’s one now. Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s hand? Because the genie doesn’t go back into the bottle.
Justice Ginsburg could have retired some time ago — and probably should have. But she believed in 2016 that Hillary Rodham Clinton was going to win the election, and so she held on. That was a political miscalculation. But that happens from time to time. Dwight Eisenhower was asked about the greatest regrets of his time as president, and he answered: “I have made two mistakes, and they are both sitting on the Supreme Court.”
Ginsburg’s legacy is not a body of legal opinions but a deformed and disfigured judiciary, one in which the American people have — with good reason — lost some measure of faith. Setting that right will be the work of a generation. And that work begins with understanding that a judge’s concern is not justice or fairness or progress but the law, and that people who want to change the law should run for office.
The alternative is not a panel of philosopher kings but the “nine-headed Caesar” that Justice Scalia warned us about.
Words About Words
I have seen one or two advertisements for a roofing company called “Staz On.” That is the marketing version of the soft bigotry of low expectations. Stays on? I should hope so! That is pretty much literally the very least one might expect from a roof. You see these excessively self-deprecating business names from time to time: In India, there was a butcher’s shop called “Decent Meat.” I suppose I prefer decent meat to indecent meat (which sounds like the name of a 1980s hardcore band), but that shop was really not saying much for itself. In Austin, there was a bar under a neon sign reading, simply, “Beer.”
But the marketing mentality is a kind of intellectual cancer, and it spreads even to anti-marketing material. In the 1990s, when Corporate America was trying to figure out how to sell things to Generation X poseurs who believed themselves to be so jaded and worldly as to be immune to crass marketing hype, the Coca-Cola Company produced “OK Soda” and advertised it with anti-advertising (a chain-letter campaign, a consumer call-in line with a 1950s-style announcer who offered to imitate bird calls) and the anti-slogan, “It’s okay.” It was okay — it was an orange soda, but not as good as Orange Crush. Because it was targeted at the Generation X proto-hipster demographic, it was test-marketed in cities such as Seattle, Denver, and Austin. Daniel Clowes (Ghost World) and other fashionable artists were brought in to decorate the cans. But OK Soda joined New Coke on the ash-heap of Coca-Cola history. And, since then, we have accumulated even more ample reason to believe that, far from rejecting hype and horsesh*t, Americans generally prefer it in about the same proportion that dentists recommend Sensodyne.
A reader writes to ask if I have noticed and lamented the promiscuous superfluous “of,” as in: “He’s not that great of a quarterback.” This is one of those “Don’t Think of a Pink Elephant!” things — I’d never really taken note of that particular verbal tic before, and now I see it everywhere, like I’m that crusading atheist assaulting fenceposts in The Ball and the Cross. This formation is known in some circles as the Big Of, with an “of” sandwiched uselessly between an adjective and a noun, “not that big of a deal,” etc. As Patricia T. O’Conner and Stewart Kellerman’s “Grammarphobia” notes, constructions of this kind have been around for a long time, in metaphors (“a hell of a dilemma,” “a bear of a problem”) and with some adjectives of comparison (“less of a problem,” “more of an advantage,” “enough of a concern”) but not others (“as big a challenge,” “as common a usage,” “as great a quarterback”). The difference, Grammarphobia writes, is between adjectives of quantity (less/more) and those of degree (big/small). To my ear, “Biden is less a problem than Schumer” sounds about as correct as “Biden is less of a problem than Schumer,” except that I tend to want the comparison in the former example to be not between Biden and Schumer but between problem and something else: “Trump is less a disease than a symptom.”
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T. S. Eliot believed that “the Church must be forever building, and always decaying, and always being restored.” The republic, too. First principles and basic truths must always be reestablished and restored, because they are always being forgotten or perverted. (Right-wing complainers who expect permanent and irreversible conservative victories do not understand history, or conservatism.) The purported radicalism of Antonin Scalia and Clarence Thomas is simply the understanding that we write laws down for a reason. That doesn’t mean that they cannot be changed, but it is not the role of judges to change them, and we could save ourselves a tremendous amount of grief if we simply agreed to that and lived by it. We need judges who will do that, of course, but, first and supremely, we need citizens who demand it.
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Editor’s note: This essay has been updated since its original publication.