The Notorious R.B.G.

National Review Online

Friday, May 22, 2015

Justice Ruth Bader Ginsburg’s more florid admirers sometimes refer to her as “The Notorious R.B.G.,” as though notoriety, which she seems intent on courting, were a virtue for a justice of the Supreme Court.

On the matter of same-sex marriage, Justice Ginsburg long ago stopped behaving like a judge and started behaving like a member of a political campaign. She talked up the prospects of same-sex marriage earlier this year — Bloomberg headlined the story, not inaccurately, “Ruth Bader Ginsburg Thinks Americans Are Ready for Gay Marriage” — and declared that Americans’ acceptance of a federal redefinition of family life, should five of nine Supreme Court justices demand it, “would not take a large adjustment.” Other than the jettisoning of state marriage laws and a few thousand years of social evolution, that is.

Ginsburg is a bit of a freelance advocate of Democratic policies and priorities, having praised, among other things, the so-called Affordable Care Act, the constitutionally questionable provisions of which she voted to uphold. Likewise, her public call for Congress to undo the effects of the Lilly Ledbetter case and her implausible, poorly reasoned dissent in the Hobby Lobby case speak to political rather than legal priorities.

Last week she presided at a same-sex wedding, not her first — the two gentlemen strolled down the aisle to the accompaniment of “Mr. Sandman” — during which, the New York Times reports, she put a theatrical weight upon the word “Constitution,” with a “sly look and special emphasis,” as Maureen Dowd put it. And that, of course, is one of the questions before the Supreme Court: whether the 14th Amendment, unbeknownst to its 19th-century architects, has all along contained within it a provision mandating the nationwide enshrinement of same-sex marriage as a matter of fundamental rights.

“Bring me a dream,” indeed.

Justice Ginsburg’s bare political activism is unseemly, a reminder that the Court, like any other institution, is corruptible, and that the law is as often made a servant of arbitrary power as it is employed as a defense against it. But Justice Ginsburg’s admirers are not troubled by that — far from it, in fact: They want what they want, and their conception of government is that it exists to give them what they want. Principle? Limitation? Separation of powers? For the infantile, nothing is able to stand against the great “I want.”

Justice Ginsburg might be expected to have a more sophisticated understanding of the architecture of our constitutional order. That she does not is both an intellectual and a moral indictment of Justice Ginsburg, and an indictment by extension of her sycophants in the press and the legal establishment. It is further evidence that there is something other than the law at work in the rulings of the Supreme Court, indeed that the law may be considered an obstacle by justices seeking to satisfy political appetites.

And this appears to be especially the case when it comes to same-sex marriage, an issue where legal reasoning has consistently taken a back seat to political advocacy. If this really were a legal proceeding, subject to standard principles of recusal, Justice Ginsburg’s open support for one side of the litigation would create a moral obligation for her to recuse herself. But an honest interpretation of the 14th Amendment is not what is going on, and Justice Ginsburg’s own comments are evidence of it: Whether the country is “ready” for same-sex marriage is, of course, irrelevant to whether it is a constitutional command. This is a ward-heeler’s approach to the Constitution. She really should be notorious.