Is it an indictment of originalism that most originalists in the academy are white males?
Justice Ruth Bader Ginsburg has become a great rock star for the left, even packing thousands of fans into a stadium in Arkansas. Some have compared this phenomenon to the enthusiasm in some quarters for the late Justice Antonin Scalia. But there is a world of difference between the two justices. Scalia revived a theory of jurisprudence—originalism—that had been dormant for over a half century. He wrote a book defending it. He was one of the great Supreme Court stylists. And he sometimes took positions in contested cases that political scientists coded as opposed to the conservative wing of the Republican party from which he came, showing that he was a judge and not a politician in robes.
In contrast, Ginsburg has become an icon without any of these distinctions. She is not a particularly gifted writer and has not previously articulated a comprehensive theory of constitutional interpretation. Unlike Justice Scalia and, for that matter, Justice Stephen Breyer, she has never written book defending her jurisprudential approach. And it is hard to think of any major case that substantially divided the justices where her vote failed to take the position political scientists would code as liberal. Of course, given the intellectual orthodoxy that dominates our universities today, it is not surprising this performance has nevertheless netted her an honorary degree from every Ivy League University except Cornell (and Cornell does not award honorary degrees) while Scalia was never once so honored. Just yesterday, after this review was initially drafted, she won the one million dollar Berggruen Prize for Philosophy, joining three previous winners who have combined to write scores of books.
Conversations with RBG, a set of interviews that Ginsburg held over the years with Jeffery Rosen, the President of the National Constitution Center, thus provides the opportunity to see whether something outside the public record other than raw ideology justifies intellectual elites’ disparate treatment of these justices. But it instead confirms that the prime reason for Ginsburg’s accolades is her relentless progressivism even as she lacks any new or compelling theory justifying that destination for constitutional law.
Indeed, the book dispels the notion that her concerns about the opinion in Roe v. Wade, her most famous public reservation from the left-liberal constitutional agenda, was anything more than tactical. She had suggested that Roe went too far and should have only struck down the “extreme” Texas law at issue in the case. But that complaint focuses on results, not jurisprudence. In the interviews her emphasis is that the decision created a public backlash that more “incremental” decisions would not. It’s a kind of “boiling the frog” argument—the public will not get so upset if the right to abortion is slowly expanded—that would still allow her to get where she is today—defending the right to partial birth abortion as somehow encoded in the Constitution.
She had also criticized the privacy rationale of Roe, but on the evidence of these interviews this reservation appears largely extraconstitutional, stemming from concern that the rationale depends too much on the doctor-patient relationship and therefore is insufficiently feminist. Certainly Ginsburg’s ideas for replacement of this rationale are neither novel nor compelling.
She suggests at one point that the right to abortion is a liberty protected by the Constitution but offers no reason why this particular liberty is protected and not a plenitude of others, like the right to work at whatever wage one chooses. She also claims the laws against abortion violate equal protection because they represent the promotion of “‘stereotypical assumptions’ about women as caregivers.” This analysis appears to show that Ginsburg either somehow fails to grasp the objections of abortion opponents or is impugning their sincerity in trying to protect the well-being of the unborn child. After all, women as well as men object to abortion and in roughly the same proportion of the population.
Without this unfair imputation of bad motives, the equal protection argument for abortion rights falls apart, because laws protecting an unborn child do not on their face discriminate between men and women. Only women can carry a child to term. Hence laws that distinguish between men and women on the basis of relevant natural physical distinctions are also generally upheld.
In one of the last interviews of the book, Ginsburg tries to justify her decisions by reference to the famous footnote number 4 in a New Deal Supreme Court case, United States v. Carolene Products, that suggests that the Court should have particular solicitude for discrete and insular minorities. But this footnote, whatever its merits, cannot justify the right to abortion either. Women constitute not a minority but a numerical majority. And the unborn are unrepresented.
Even beyond abortion, the Carolene Products rationale runs into serious practical and theoretical problems in justifying the results that Ginsburg wants it to support. For instance, she believes that the Supreme Court should not impose any substantial judicial review on affirmative action programs. But these programs generally now do affect some minorities adversely, like high achieving Asian Americans. And more theoretically, even the white people adversely affected by these programs are small in number and politically powerless compared to the interest groups, like businesses and academics and organized minority groups that favor them. Ginsburg does not provide any tractable way for the Court to determine who is politically powerless in reality.
Moreover, the Carolene Products footnote does not suggest that the Court should only enforce the Constitution on behalf of minorities. It also indicates that the Court should rigorously enforce the Bill of Rights for all. Yet Ginsburg believes that the Court should defer to Congress on campaign finance matters because of their superior knowledge, even when the First Amendment is at stake, arguing for instance against the Citizens United decision. But the legislators are the most self-interested and least reliable when their electoral interests are at stake. Talk about putting the foxes in charge of the henhouse!
Jeff Rosen never challenges Ginsburg on any of these matters either in his questions or in his brief introductions to each set of questions. For instance, he baldly states that Ginsburg is a “civil libertarian” without noting the incongruity of so describing a justice who wants to put people in jail for political speech, if that speech is made by corporations, for-profit or non-profit, near election time. Moreover, he uses statistics that seem misleading. Rosen touts Justice Ginsburg as the least activist judge, because she would have invalidated the fewest state or federal laws between 1994 and 2001. But Ginsburg has been on the Court now for an additional eighteen years after those seven, and surely the relevant measure of her activism so defined should take account of her entire tenure.
Perhaps some of his bias can be excused, because Rosen makes clear that he is a friend of the justice. He has attended operas with her and Ginsburg officiated at his recent marriage. But even so one might expect more objectivity from the President of the nonpartisan National Constitutional Center and more sophistication from a law professor at George Washington University.
Particularly egregious is his claim that Ginsburg is a good originalist, perhaps better than the justices who proclaim originalism, in part because she held that Obamacare was justifiable under the Commerce Clause. The constitutional issue there was whether meaning of the phrase “regulate commerce among the states” encompassed the Obamacare’s mandate for individuals to buy insurance. Rosen does not even mention Chief Justice John Roberts’ argument that interpreting the Clause to include mandates as well as regulations would make much of the rest of Congress’ enumerated powers otiose and thus cannot be its original meaning. Nor does he discuss the substantial work of originalists, like Randy Barnett, on the original meaning of the Commerce Clause that also undermine her position as an original matter.
The book’s greatest value is that it reminds us of Ginsburg’s path to becoming a justice. Rosen shows us that the canny Senator Patrick Moynihan was crucial to getting his fellow New Yorker nominated to the first vacancy on the Supreme Court, even reprinting a memo he wrote on her behalf. He also reminds us that before obtaining her position on the Court, Justice Ginsburg was a very successful litigator on behalf of women’s rights, winning a series of decisions at the Supreme Court that interpreted the Constitution to make it more difficult for legislators to make distinctions on the basis of sex. And her background as an appellate lawyer helps explain both her perspective and her popularity. She now can claim all of constitutional law as the domain for advancing the preferences which she shares with many other progressives.