fbpx

The Troubling Apotheosis of the Notorious RBG

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 23, 2018 at 09:02:35 am

Spot on. To proponents of a “living Constitution,” results are all that matter. RGB is a reliable vote. The fact that she is an undistinguished partisan hack is precisely why the Left worships her.

read full comment
Image of Mark Pulliam
Mark Pulliam
on February 23, 2018 at 10:36:00 am

Excellent analysis!

RBG is an unscrupulous ideologue. She has grievously abused and distorted the constitution in pursuit of destructive political objectives.

RBG was an unscrupulous ideologue, experientially, temperamentally, intellectually and ethically unfit for judgeship, when the unscrupulous Bill Clinton appointed her to the Court. Clinton knew all of that. He was all of those things, himself, which is why HE appointed HER. She not only met his overriding ideological criteria for a jurist and served his unstated political purposes for the judiciary, RBG closely resembled WJC in her lack of character and qualifications for office.

Thus, the reason for the Left's adulation of RBG is patently self-explanatory: Along with their elevation of the Clinton criminal enterprise and the Obama imperial presidency, Justice RBG ranks among the greatest achievements of the Left's decades-long, jack-booted march through the constitution.

The inexplicable mystery is how Justice Scalia, of towering judicial temperament, legal intellect and moral prudence, could have befriended such a pygmy pretender to those qualities . Surely their mutual love of opera does not answer that question.

History will never really know the honest answer to that befuddling mystery; the meaning of Scalia's "rosebud" died unspoken with the man.

read full comment
Image of timothy
timothy
on February 23, 2018 at 13:50:31 pm

Perhaps he took pity on this legal pygmy.

And the effectiveness and acceptance of the Left's "ideological criteria" upon the citizenry is further evidenced by this:

https://www.newsmax.com/newsfront/law-students-survey-election-trump/2018/02/23/id/845026/

wherein the primary reason for fully 1/3 of new Law School students was to "counter" the 2016 election.

Holy Shitutays, Batman; are we ever in for it!

read full comment
Image of gabe
gabe
on February 23, 2018 at 14:35:43 pm

Crikey!

Just when you thought the legal academy couldn't get worse it gets worse.

These social justice warriors are but aspiring barrators.

May they perdure law schools of Dantean misery and careers of lamentation, suffused with the boiling pitch of punishment for peddling legal fakery and abusing law's sacred trust.

read full comment
Image of timothy
timothy
on February 23, 2018 at 15:29:10 pm

Oh, I don't know: her foaming-at-the-mouth opinion in United States v. Virginia, constitutionalizing the prohibition on conventional sexual norms, was fairly original.

read full comment
Image of Paul
Paul
on February 23, 2018 at 15:32:34 pm

Luvv'd it!

read full comment
Image of gabe
gabe
on February 23, 2018 at 17:46:53 pm

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.

So McGinnis would prefer if Ginsburg presented herself in a more traditional model of justice--say, wearing a toga and carrying a scale and a sword while blindfolded?

Be careful what you ask for....

read full comment
Image of nobody.really
nobody.really
on February 23, 2018 at 20:36:26 pm

The only mark Bad-Gin will leave on American Jurisprudence will be in the nature and substance of a terrible hang-over. And, it is my prediction that she will not be the first of her fellow Lefties to "depart" the Court; and this really is of no consequence. She became irrelevant (nearly so, by the time she was sworn-in) years ago, and perhaps, not a stupid person, and certainly not an unambitious or humble one, she even realizes this to some extent, and her recent foray into the 'spot-light' may be to her, what she perceives as her last best chance to salvage for herself some distracting footnote from what will otherwise be seen as a decidedly dull, uninspired, and undistinguished tenure.

read full comment
Image of Paul Binotto
Paul Binotto
on February 24, 2018 at 01:08:20 am

She wrote Eldred v. Ashcroft, one of the finest originalist decisions on copyright.

read full comment
Image of Mickey Mo
Mickey Mo
on February 24, 2018 at 11:34:13 am

OK with me just so long as the toga does not fall off - OMG, what a sight that would be!

read full comment
Image of gabe
gabe
on February 25, 2018 at 23:52:41 pm

rbg is a clown. i bet john roberts laughs at her stupidity during conference!

read full comment
Image of ash the cat
ash the cat
on February 26, 2018 at 09:58:14 am

If Roberts "laughs at her stupidity" is that a personal penalty or a direct tax on RBG?

read full comment
Image of timothy
timothy
on February 27, 2018 at 09:02:35 am

yikes!! poor johnny will never be able to live that one down, huh???

read full comment
Image of ash the cat
ash the cat
on February 27, 2018 at 14:35:40 pm

[…] Law and Liberty, John McGinnis argues that “the veneration of Justice [Ruth Bader] Ginsburg shows what the left […]

read full comment
Image of Osibogun and Partners - Law Firm
Osibogun and Partners - Law Firm
on March 09, 2018 at 06:01:23 am
Image of Hektor Bleriot
Hektor Bleriot
on July 06, 2018 at 22:51:32 pm

[…] and Liberty” published an article questioning propriety of behavior of the “notorious RGB”, the U.S. Supreme Court Justice…, a party in litigation in front of her, makes trips to Hawaii at the expense of Hawaii State Law […]

read full comment
Image of Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too - My Blog
Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too - My Blog
on July 07, 2018 at 12:45:35 pm

[…] and Liberty” published an article questioning propriety of behavior of the “notorious RGB”, the U.S. Supreme Court Justice…, a party in litigation in front of her, makes trips to Hawaii at the expense of Hawaii State Law […]

read full comment
Image of Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too | BBNAIJA
Did you only annoy a judge or did you vex him? It is time for a legislative overhaul of the law of judicial recusal, otherwise courts as we have it now is just a waste of our money, and a harmful waste, too | BBNAIJA

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.