Like Mike Rappaport and much of the broader world, I’ve been baffled by Justice Ruth Bader Ginsburg’s New York Times ruminations—though not in the same way. Many of her observations strike me as obviously right. (It is in fact high time to move to New Zealand, or some place with lower mountains and even less government). And why should we heap opprobrium on a public official who actually tells the truth? She is wrong, however, not necessarily as a general matter but on her own terms, in deeming a Trump presidency an unthinkable horror: it might be her finest hour.
RBG personifies what Brother McGinnis has called our two Supreme Courts: a conscientious lawyer in cases that interest no one except the unfortunate victims of CivPro or FedCourts exams; a reliable champion for social movements, including the women’s movement that brought her to the Court. That has been and will be the profile of every non-conservative justice in recent memory. And it satisfies the needs of the 2016-2024 Clinton administration and its Court—no? The justices’ role is clear: wave through any imposition; vindicate the rights of sexual minorities no one has ever heard of and make sure you stay ahead of the curve; deliver a lecture on human dignity in Salzburg or some such place; retire as a hero(ine).
Suppose that comes to pass: future generations will be hard-pressed to tell whether those justices were heroes or hangers-on; a vanguard or weasels; sages or sycophants. It’s hard to tell even now; and for what it’s worth the “heroic court” story Justice Ginsburg likes to tell herself has very little currency even in her own intellectual circles.
The best chance for Justice Ginsburg’s lasting reputation, the Supreme Court, and for that matter the rule of law is what she “cannot imagine”: a Trump presidency. Confronted with an aggressively populist, anti-constitutional executive not to her liking, Justice Ginsburg would have to stand up to real power.
That won’t come easy to a justice who rose to fame by mowing down yesterday’s scarecrows and surfing social movements. But she’s a damn good lawyer and has guts and integrity. Hang in there, girl: the country needs you.