The equanimity of Justice Ginsburg

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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The New York Times reported on Sunday that Justice Ruth Bader Ginsburg does not plan to retire from the Supreme Court so that President Obama will be able to nominate her replacement. “I love my job,” the justice is quoted as saying. She intends to stay on the court “as long as I can do the job full steam.”

Some on the left will view Ginsburg’s intention to remain on the court, notwithstanding the possibility that her eventual replacement might be nominated by a conservative president, as a selfish act disloyal to the liberal causes for which she has fought across her entire career. But Ginsburg told the Times reporter that “[t]here will be a president after this one, and I’m hopeful that that president will be a fine president.”

Ginsburg’s seemingly nonpartisan optimism is refreshing, though not surprising given that she counts among her very best friends her chief antagonist on the court, Justice Antonin Scalia. It reflects an old-fashioned idea that, while judges will disagree, they aspire to be objective interpreters of the law, and that it should make no difference what their politics may have been in the past or what the political party of their sponsoring president was.

The Court’s frequent split between justices nominated by Republican as opposed to Democratic presidents suggests naiveté on the part of those who look to the court for principled nonpartisan decision making, but we should nonetheless admire a justice who acts as if such decision making is possible. And we should remember that even on issues of high political partisanship, the court is sometimes unanimous or divided with unexpected alliances.

Although there are plenty of apparently result-oriented decisions, what often divides the court are fundamental matters of judicial and constitutional philosophy. While it is difficult, even for Supreme Court justices, to set aside personal political preferences when interpreting and applying the law, we cannot accept that it is impossible without giving up on the idea of the rule of law.

Illustrative of a fundamental disagreement about judicial philosophy is Justice Ginsburg’s assertion to the Times reporter that the court on which she sits is “one of the most activist courts in history.” Of course the Times grabbed that statement for its headline, but Ginsburg made clear that she was measuring activism by the court’s “readiness to overturn legislation,” suggesting that there might be other gauges of judicial activism. Ginsburg’s is a perfectly reasonable measure of activism, but not necessarily one warranting condemnation.

By Ginsburg’s lights, active overturning of legislation is an illegitimate overriding by unelected judges of the will of the elected representatives of the people. That conclusion reflects a belief that ours is first and foremost a government founded in democracy.

But there is a contrary and equally legitimate belief often, but not always, reflected in the decisions of what Ginsburg labeled the “usual suspects.” By this view, in a government founded on the protection and preservation of liberty, it is the judiciary’s constitutional responsibility to override legislation that exceeds the power of the legislature or violates the rights of the citizens.

A disagreement between those who believe the courts should be active in protecting liberty and those who believe the courts should be deferential to the legislative and executive branches is more one of philosophy than politics. Indeed the many conservatives who have long embraced the judicial restraint theories of Robert Bork are no doubt surprised, if not chagrined, to find themselves in bed with Justice Ginsburg in their condemnation of judicial overriding of legislation as inappropriate activism.

Unfortunately, neither the Ginsburg left that condemns the current court as activist nor the Bork right (e.g. Rehnquist and Scalia) that condemned the Warren Court as activist is always consistent with its philosophical principles. For her part, Ginsburg embraces the legislation-invalidating activism of the Warren Court which criticizing the current court for protecting property rights and limiting congress to its enumerated powers. The difference is only in the rights at issue, not in the constitutional legitimacy of judges invalidating legislation.

A different, and I would argue better, understanding of inappropriate judicial activism condemns judicial overriding of legislation where the legislature has clear authority to act and the courts are disagreeing on policy. But where the legislature has acted beyond its authority or in violation of individual liberties, it is the judiciary’s constitutional responsibility to invalidate the offending legislation. If that is judicial activism, lovers of liberty should sing its praises.

Justice Ginsburg has been a champion of equal liberty for decades. As she pushes forward at full steam, perhaps she (and her pal Scalia) will pause to reflect on the constitutional role of their court in a government instituted to secure the unalienable rights of life, liberty and the pursuit of happiness. If they do, they might find themselves in agreement about more than the wonders of opera.