During the summer, Justice Ruth Bader Ginsburg was all over the place, giving talks and interviews to an adoring and utterly uncritical media.
Her Sept. 12 interview with John Hockenberry on the radio show The Takeaway provided a very candid look at the results-driven mind of this jurist who too often subordinates law to politics in deciding cases.
Hockenberry asked Ginsburg about her work as a litigator in transforming the Fourteenth Amendment’s equal-protection clause into an instrument for gender equality.
She observed: “A great constitutional scholar Paul Freund once said, ‘The Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era,’ and that’s what happened in the 1970s. Judges had daughters and granddaughters and they began to recognize that some of, some of the so-called favors for women were not favors at all, but they were locking women into a small piece of man’s wide world. So it was a change in society that opened the Court’s eyes and made my arguments palatable when they would not have been a generation before.”
This is, of course, an example of the excrescence of living constitutionalism, a view that Ginsburg has enthusiastically pursued on the court — for example, with her ahistorical, feminist destruction of the male-only policy at the Virginia Military Institute in 1996 (in United States v. Virginia) and her ferocious commitment to the abortion license in all its constitutional manifestations, including her unequivocal defense of the repulsive regime of partial-birth abortion (she has referred to the prohibition of the practice as “irrational”).
The living Constitution yields to the strictest application of originalism, however, when the issue is gun rights.
Ginsburg explains that “my view of the Second Amendment is one based on history. The Second Amendment has a preamble about the need for a militia. Because there is a need for a militia to be at the ready, therefore the right to keep and bear arms must be secured. Historically, the new government had no money to pay for an army, so they relied on the state militias. And the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment.”
Ginsburg may or may not have read the history of the Second Amendment accurately in District of Columbia v. Heller (2008) — for what it is worth, I believe she did — but she at least made the proper inquiry into the original understanding of the amendment. What makes her approach so arbitrary is that when it comes to advancing the political cause of women’s rights, the Fourteenth Amendment’s history is ignored and interpretation is guided solely by current ideological preferences.
When the only concern is reaching the right result in a case, history need not get in the way. With this selective approach, Ginsburg is not doing constitutional law, just politics. Her fawning interlocutors during her summer tour utterly failed of course to question her about this rather obvious incoherence.
The only good news is that while Ginsburg often has the results that she wants, she will leave no enduring legacy. Her work will justly fade away into the vast jurisprudential wasteland of unprincipled mediocrity. •