April 17, 2009

Ohio State University’s law school recently held a symposium marking Ruth Bader Ginsburg’s fifteen years on the United States Supreme Court. Precisely why this milestone merited such treatment is hard to determine: like Thurgood Marshall, Ginsburg was arguably more important before she reached the Court than she has been since. My guess is that the organizers realized this was a way to get Ginsburg to come give a speech at their law school.

And speak she did. Ginsburg held forth on the relationship between the Supreme Court and foreign courts, specifically as it comes to citation of foreign decisions by the justices and to the Supreme Court’s influence on foreign courts. In the former area, she said that, “€œI frankly don”€™t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.”€

The chief objection has been to reliance on foreign reasoning in applying the United States Constitution. Here, figures such as Justice Ginsburg have been notably two-faced about reliance on such law.  As Justice Scalia noted in his Roper v. Simmons (2005) dissent, the Court majority ignores the overwhelming weight of foreigners”€™ rejection of an exclusionary rule, has no interest in the fact that only France rivals the US in the strictness of its church-state separation, and insists that the USA continue to be one of only a handful of countries where abortion is legal to the point of viability. In addition, he adds, the American prohibition on double jeopardy is virtually unique.

Does Ginsburg propose to bring America into the mainstream of jurisprudence by reference to foreign judges”€™ opinions? No. Rather, as has become fashionable among post-Brennan-era American legal thinkers, she simply wants to cast a wider net for any support in anyone’s thinking for whichever predetermined outcome she has in mind at the moment. She has no more intention actually to be guided by foreign courts”€™ reasoning than to be guided by anyone else’s.

Ginsburg said at Ohio State that it once was commonplace in American courts to refer to English precedents. She is right about that. Where she errs, however, is in implying that once American judges felt free to roam at large in search of justification for their legislative behavior. When 18th- and 19th-century American judges referred to common-law precedents, they did so because those were the precedents that American Revolutionaries had in mind when they used technical legal language like “€œhigh crimes and misdemeanors”€ or “€œcruel and unusual punishments”€ in America’s basic legal documents.  They did so, in other words, precisely to avoid acting as legislators possessed of unbounded discretion. They did so to divine the meaning of the words their superiors”€”when it comes to the Constitution, the Ratifiers”€”had in mind.

Reading the bilge produced by the Ginsburgs of the world, one begins to wonder whether they are perpetually intending to mislead, whether they are so untiringly tyrannical that they endeavor from morning to night to undercut the intended system of constitutional limitations on officials”€™ power.  I think that the answer is rather simpler than that: mediocrities such as she simply know no better. Like William Brennan, their beau ideal of a judge, they believe that imposing their will is their mission in life. They equate it with the general good.

Ironically, Justice Ginsburg in the same speech gave a rationalization for wide-ranging judicial policy-making power. The Holocaust showed that some such mechanism of undemocratic input into the political process is necessary, she said, because it proved that elections sometimes yield ghastly outcomes.

If we accept her point, the solution is not for judges to hide authoritarian behavior behind the lie that the republican U.S. Constitution demands the outcomes upon which they have lighted. Rather, it is to throw over republican government altogether in favor of something avowedly unrepublican. She will never dare to say that, however, because she knows that few would consent. Instead, she will continue on the dishonest path she long ago chose.

It is an egotist’s path, obviously. Just consider the self-regard implicit in the judicial enterprise, as reflected in Justice Ginsburg. At Ohio State, she lamented that her colleagues”€™ opposition to reliance on foreign precedents undercut the Supreme Court’s influence abroad. Why, Canada’s top court has more influence, she lamented. Surely the justices need to rule in such a way as to earn themselves more influence in Sarajevo or Quito, Hanoi or Berlin.

The U.S. Constitution is supposed to be the supreme law of the land. In what sense? In the sense in which the law-givers”€”the Ratifiers”€”understood it. If we do not insist that officials read it as the Ratifiers did, we leave them free to do as they wish. Casting her gaze across the precedents of every country in the world over all of recorded time, Ruth Bader Ginsburg can discover some precedent somewhere for anything she wants to do. And that is the business she is in.


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