Thursday, March 28, 2013

Confused About Her Role

Speculation about how the Supreme Court will rule on Proposition 8 has led to an examination, cursory though it has been, of past rulings and statements by the Justices which may shed light on how they will rule.  A couple of days ago, analysts saw in remarks made by Justice Ruth Bader Ginsburg at a symposium at Columbia Law School in February of 2012 a hint that the Court may rule against Proposition 8 but allow restrictions in other states to remain. Ginsburg stated of Roe v. Wade

It's not that the judgment was wrong, but it moved too far too fast... The court made a decision that made every abortion law in the country invalid, even the most liberal. We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained.

In remarks made after a speech at Princeton University in October, 2008, Justice Ginsburg sounded a similar note, contending

The court bit off more than it could chew... The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice.   They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.

Some Supreme Court judges, especially liberals, view the Constitution as a living document. Conservatives generally hew to an originalist interpretation.  But Justice Ginsburg here is suggesting something quite different than either.  She apparently believes Court findings should be either responsive to the popular sentiment- as she suggested in February, 2012- or one will shape the popular will as she believes appropriate, as she suggested in October, 2008.

In either case, Justice Ginsburg believes rulings of the United States Supreme Court should be subject to a political test.  That is a terrible perspective for a member of the body which is the final arbiter on the U.S. Constitution.  If Justice Ginsburg believes Roe v. Wade was improperly decided, she should say so.  Otherwise, she ought to support the ruling and not suggest otherwise.

When considering an issue, an individual may be less concerned with the intent of the framers, interpretation of the Constitution in a modern context, or the literal meaning of the document than with its political implications.  The name for that individual is legislator.

HAPPY PASSOVER                                                            HAPPY EASTER

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