Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
More than a few eyebrows have been raised recently about the conspicuous entry of another distinguished voice into the maelstrom of the current presidential race. Justice Ruth Bader Ginsburg has taken up herself in a series of interviews and pronouncements to lace into Donald Trump and all but endorse Hillary Clinton as President of the United States. In her discussion with New York Times Supreme Court correspondent Adam Liptak, she sounded just like another partisan political figure opining in the sad state of politics in the United States.
At one level there was nothing surprising in these particular remarks. Anyone who has paid the slightest attention to her work on and off the Court in recent years knows of her diehard liberal views on virtually all these issues. Her denunciations of Donald Trump, her endorsement of Merrick Garland for the open seat on the Supreme Court, her criticism of the Senate to move forward on the nomination, her intense dislike of Heller on the Second Amendment, and of Citizens United on First Amendment protection of corporate speech are all part of the basic liberal playbook to which she subscribes. Only her reference to her late husband Martin Ginsburg that “Now it’s time for us to move to New Zealand,” gives some wry sense of the level of her discontent.
Yet, even if predictable, it is also disquieting. Her current views show a quest for the lime light that is inconsistent, I think, with the effort of a justice of the Supreme Court, no matter how passionate her views, to keep to the judicial role exclusively, so as to avoid even the appearance of bias in her decisions. But anyone who looks at the picture that the New Republic took of her on September 28, 2014 bathed in red, while wearing of judicial robes in a grand room in the Supreme Court building, knows exactly what is going on even before reading the title attached to Jeffrey Rosen’s piece, “Ruth Bader Ginsburg is an American Hero.” Not exactly the title that precedes a detailed dissection of her written opinions.
Therein lies the problem. The Justices should be subject to close scrutiny in all they write, by their supporters as well as their detractors. But the worshipful stories undercut any form of critical intelligence. In an odd sense they are worrisome precisely because her liberal supporters don’t even think that they have to mount a defense of key decisions.
But in my view, however, there is a lot of work to be done, given the strength of my disagreement with many of her views. I think that Citizens United was rightly decided, and that political speech through the corporate form should be protected as much as individual speech. Banning political speech before election time cuts to the heart of First Amendment protection. Similarly, knocking down the contraceptive mandate in Hobby Lobby was also the right choice. It seems utterly indefensible that the state should ever put any individual or firm to the choice between abandoning their core religious beliefs and being able to participate as equal citizens in the marketplace. Conditions of universal service are appropriate for monopoly businesses, but not for employers or vendors in competitive markets. Nor do I think that it is appropriate in cases like Friedsrichs v. California Teachers Association to force teachers to support a union that they do not wish to join in order to continue with their public employment.
All of these cases involve some application of the doctrine of unconstitutional conditions, which in former times was constantly (and correctly) invoked by left to limit the choices that a monopoly government could impose on its citizens. No one could be asked to swear that he was not a communist in order to get a real estate tax exemption or to become a member of the bar. No one could be forced to waive his or her Fourth Amendment rights against unreasonable searches and seizures to drive on the public highways. Here, then, is the larger danger of the Ginsburg forays into public policy. There is not so much as a syllable of reasoned argument in support any of the positions she endorses. It is all ipse dixit.
That is not how public disagreement should be voiced. That point applies with equal forces to cases where I agree with her general approach. I have long been skeptical that the Second Amendment should be read disconnected from the state militias to which it refers in its opening clause, and I think that in dealing with affirmative action programs, as in Fisher v. United States, that the state should have greater discretion in how it runs its own businesses than how it regulates others.
So here is the deeper concern. The entire pattern of adoration is not only made to raise the prestige of Justice Ginsburg, it is also meant to silence those who disagree with her. After all, if the points are as obvious her comments suggest, what reasonable person could disagree with her? Modern progressivism does not represent a new form of intellectual openness. All too often it represents a substitution of some new dogmatism for some old one.Published in