Subjected to moral scrutiny, any atextual theory of “interpretation” must fail.
The adulation of Ruth Bader Ginsburg, which appears ever growing on the left, raises concerns about the left’s model of a justice and of justice. Ginsburg is the jurist currently on the Court who has most clearly crossed the line to become involved in partisan politics. She has offered no general contributions to constitutional theory, unlike Antonin Scalia, the only modern justice who has a similar ideological following. And she is not a fine stylist and clever doctrinalist of the caliber of Scalia and of Chief Justice John Roberts or of a justice generally thought to be on the left of the Court, like Elena Kagan.
Let’s begin with her extracurricular pronouncements. She opined multiple times on the 2016 Presidential election, denouncing the presumptive candidate of one of our major parties as a fraud. She also suggested, like many silly celebrities, that it might be time to move abroad if he won. She did eventually apologize for these comments, but they remain on the record as the most outrageous, publicly partisan sally by a justice in modern times. No one else comes close. They raise continuing questions about her objectivity in deciding cases involving the Trump administration and thus damage the legitimacy of the Court.
And that is not the end of her inappropriate comments. She has revealed how Justice Scalia voted in United States v. Texas and how Elena Kagan would have voted in Fisher v. Texas, had she not been recused. She makes sly digs at President Trump and at her new colleague, Justice Neil Gorsuch. And she will not give up punditry on the 2016 election, blaming Hillary Clinton’s defeat on sexism. This is the model of how a justice should not conduct herself.
No doubt the left wants to elevate to the pantheon a figure equivalent to the late Justice Antonin Scalia, whose writings and ideas remain vibrantly in the news and in the law reviews two years after his death. But the problem is that Justice Ginsburg is neither the jurisprude nor the writer that he was. Indeed, it is notable that she has not substantially contributed to the general theory of constitutional or statutory interpretation. Scalia did so, playing an important role in redirecting originalism away from original intent to original public meaning and moving the Court toward statutory textualism. (I have reservations about the latter position, but it was consequential and well argued). The strongest evidence of his historical significance is that even law professors opposed to him spend a lot of time trying to refute his ideas. It is true that Justice Ginsburg has embraced the use of foreign and international law, but even had she ably defended this position—which she has not—that is hardly a general contribution. Here she is to be contrasted with President Clinton’s other appointee, Justice Stephen Breyer, who wrote an entire book Active Liberty justifying his approach to constitutional law.
Other justices on the left side surpass her in other ways. As I have written elsewhere, Elena Kagan is both a fine stylist and the only equal of John Roberts on the current Court when it comes to the smoothness of deploying doctrine. But Kagan and Breyer are by political science measures not nearly as far to the left as Ginsburg in their voting patterns. And thus it is hard to avoid the conclusion that the veneration of Justice Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.