The death of Ruth Bader Ginsburg
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| The Notorious RBG. Sometimes your words just hypnotize me. // public domain |
She was nominated to the Supreme Court by Bill Clinton and was only the second woman to serve in the country's highest court at the time. She became a big icon in popular culture, becoming probably the most recognized name of any Supreme Court justice with a nickname among her loyalists of "Notorious RBG" after the famous deceased rapper. Though it's not her fault, I thoroughly dislike cult movements, particularly in politics, as with Theodore Roosevelt more or less creating the cult of the Presidency. Even the cult around my favorite politician of all time, Ron Paul, never really sat well with me.
Nevertheless, she has become a popular figure, with people proudly toting RBG swag. Her brand swept across late night talk shows, movies, documentaries, and mentions in TV shows. She may be the Supreme Court justice for people to most fashionably adore, and will not likely be surpassed any time soon.
But I despise fashion.
It tends to be arbitrary, swings wildly with little reason or logic, and typically features very little substance in favor of a collectivist herd mentality.
In reality, Ginsburg did some great things and some terrible things. Just like most other justices. By no metric of libertarians or a metric of interpreting the constitution was she a great justice, or even a good justice, but exceedingly few are. Of those currently serving, maybe only Gorsuch would pass such a purity test. But Ginsburg is definitely not uniquely bad like the right may claim and not uniquely good as the left would claim.
Her greatest work may have been in women's rights. In United States v Virginia, Ginsburg wrote the majority opinion that the Virginia Military Institute's male-only admissions standards violated the Fourteenth Amendment. If females must pay taxes to support the school, then they should be afforded the opportunity to benefit from the school. In Reed v Reed during her time as a lawyer before the Supreme Court, she helped strike down a law in Idaho that read "males must be preferred" when appointing administrators of estates. She has, in certain instances, while advocating for women's rights, tread into violations of private property rights and freedom of association in cases such as in Ledbetter v Goodyear Tire, where the company paid Lilly Ledbetter less than her male coworkers. While those in charge of pay were assholes for doing so, private property rights are protected while equal protection under the Fourteenth Amendment does not apply to private company wages. A far better solution would have been for Ledbetter to work for someone that properly valued her work, away from sexist employers, which in itself would harm Goodyear Tire and benefit another company. However, this misstep does not invalidate her other solid work on women's rights.
More recently, in Obergefell v Hodges, she utilized the Fourteenth Amendment to strike down state laws forbidding same-sex marriage, a monumental win for liberty. The court split the decision straight down the ideological divide with Kennedy swinging to the left. The conservative justices argued for states' rights, but Ginsburg and her peers are correct that the Fourteenth Amendment explicitly bars states from denying any person equal protection under the law. States' rights do not apply here.
In a case the libertarian Institute for Justice litigated on behalf of Timbs, Ginsburg, writing the primary opinion in a unanimous ruling against the state in Timbs v Indiana, denounced the state for taking Timbs's $42,000 car purchased from his father's life insurance policy, following two counts of heroin sales of less than $500. The fight against civil asset forfeiture won a victory in striking down this outright state theft on the grounds that the Eighth Amendment forbids excessive fines. Despite the unanimous ruling, the state, of course, appealed the ruling.
Unfortunately, there are plenty of bad rulings and opinions the firebrand justice had also penned.
Perhaps one of the more famous is her dissent in Citizens United v FEC. In this case, the court ruled that the Federal Elections Committee may not prohibit corporations, unions, and other organizations from disbursing funds to advocate for or against any political candidate. Justice Roberts asked whether the FEC can prohibit the publication of a 500 page book just because the end says "so vote for X", to which the Deputy Solicitor General, testifying on the FEC's behalf, said that yes, the FEC could. The Orwellian consequences of this ruling should be obvious from that analogy, but Ginsburg was unfazed by it. It is difficult to see how this would not be protected under the First Amendment. People often argued later that "corporations aren't people" in defense that the First Amendment doesn't apply here. Okay, but corporations (and other organizations) are run and owned by people. To say that the First Amendment does not apply to people's possessions is to conclude, if taken to its logical conclusion, that a sign someone possesses and wrote, does not have First Amendment protections, and can be censored by the government. That would, of course, be ridiculous.
While she did good work in upholding equal protection under the law, in Grutter v Bollinger, it turns out that she's actually okay with unequal protection under the law as long as it's in the direction she prefers. In the case, Barbara Grutter alleged that she was denied admission to the University of Michigan where my fellow Duck alumnus Lee Bollinger was president, despite having sufficient grades due to affirmative action laws. Fundamentally, this flies in direct opposition to her United States v Virginia opinion and in line with the racist Jim Crow laws. Sorry, Lee. I was rooting against you. Nothing personal.
When the Supreme Court heard the Affordable Care Act back in 2012 in National Federation of Independent Business v Sebelius, Ginsburg lambasted the argument that Congress lacks the power to force people to purchase health insurance. Really? Where in Article 1, Section 8 of the US Constitution does it authorize Congress to do so? Does she have any sense of the Ninth Amendment which reaffirms that the Constitution's scope of powers granted to government is extremely limited, only to the powers specifically enumerated therein? If the "commerce clause" as the left so widely interprets it, actually does this, then just burn the Constitution now because it is a worthless piece of paper with no limitations of government power. On the positive side, from Roberts's controlling opinion, the case itself struck down the commerce clause as the individual mandate's justification. On the negative side, the case widely broadened the scope of taxing power by the government.
Going back to another Institute of Justice case, Kelo v New London, Susette Kelo's house was forcibly sold to the city, using eminent domain as the justification. The house was taken, however, with the intention of giving it to a corporation, Pfizer, to build a campus, stating economic growth as its justification of "public use" as required by the Fifth Amendment. It should be clear to most that such a justification enables the government to take just about any property and make any twisted notion that it "helps the economy" because of it. Not Ginsburg nor four of her colleagues. She voted to allow the government to take an average citizen's home for the purpose of giving it to a large, rich pharmaceutical corporation. Thankfully, the case inspired 43 states within five years to pass eminent domain reform along with others affected by eminent domain abuse to fight for their property rights, noting the obvious bad ruling by Ginsburg and her peers. One would think a progressive like Ginsburg would rule against the government cozying up to corporations, but she was joined by other progressive justices such as Breyer. She was so concerned about corporate money in Citizens United, but okay with governments bending the rules to favor corporations? If the whole point of limiting corporate donations isn't to end things like this from happening, then what is it?
In the end, despite the Kelo case, Ginsburg was a judge who reliably ruled in favor of progressive causes, irrespective of the Constitution. And therein lies the issue of why so many people are freaking out about her now vacant seat. Supreme Court justices are supposed to interpret and apply the US Constitution to laws. Full stop. Justices current and former like Ginsburg and Breyer are not supposed to advance progressive causes. Justices current and former like Scalia and Alito are not supposed to advance conservative causes. SCOTUS judges are supposed to be nonpartisan, judging only on the written text of the Constitution. Politicians freaking out about this have only themselves to blame. People freaking out about this have only themselves to blame for cheering on this partisan trend.
Predictably, Mitch McConnell, despite four years ago forcing a delay of a SCOTUS pick on Scalia's vacated seat to the next president to avoid an Obama nomination, is pushing to get a new nominee installed before the November vote. Just as unsurprising is Chuck Schumer, taking the exact opposite but congruently hypocritical stand.
If McConnell gets his way, conservatives will open up the even greater possibility that the Democrats, when they regain power, will pack the court, much like what FDR wanted to do to obtain a rubber stamp on the illegal laws he wanted. This would be despite Ginsburg herself correctly noting that court-packing is a bad idea.
I bet the Democrats regret ending the filibuster in 2013 for certain judicial and executive appointments, resulting in the Republicans escalating the filibuster in 2017 to include Supreme Court appointments. I bet the Republicans will regret escalating the filibuster in the not too distant future. Never, for a second, assume the people in power can't get worse.
