By Kevin D. Williamson
Tuesday, September 22, 2020
Ruth Bader Ginsburg did a great many interesting and
impressive things in her life, but she never did the one thing she probably
really should have done: run for office. Ruth Bader Ginsburg wasn’t an
associate justice of the Supreme Court — not really: She was a legislator in
judicial drag.
You need not take my word on this: Ask her admirers.
“Ruth Bader Ginsburg had a vision for America,” Linda Hirshman argues in the Washington
Post. What was her vision? “To make America fairer, to make justice
bigger.” That is not a job for a judge — that is a job for a legislator. The
job of making law properly belongs to — some people find this part hard to
handle — lawmakers. Making law is not the job of the judge. The job of
the judge is to see that the law is followed and applied in a given case. It
does not matter if the law is unfair or if the law is unjust — that is not the
judge’s concern. If you have a vision for America, and desire to make the law
more fair or more just, then there is a place for you: Congress. That is where
the laws are made.
This distinction is an important one. As you may have
noticed over the course of the summer, Americans do not agree on everything.
Some of us have ideas about what is good, decent, fair, just, wise,
intelligent, prudent, and necessary that are radically different from the ideas
other Americans have about what is good, decent, fair, just, wise, intelligent,
prudent, and necessary. Democracy is not good for very much, but democratic
institutions are how we settle those disagreements. Even the antidemocratic
elements of U.S. government, such as the Bill of Rights, which put certain
questions beyond the reach of mere temporary majorities, came out of democratic
institutions and were implemented through a democratic process. It is from that
that they derive their legitimacy. Democracy has its shortcomings — mostly
rooted in the fact that human beings are universally fallen and in the majority
savage — but the alternative is bonking each other over the head over every
disagreement.
Put another way, the alternative is might makes right —
which is exactly the kind of “jurisprudence” Justice Ginsburg and others of her
kind have long practiced. There isn’t a goddamned word about abortion or gay
rights in the Constitution, and it is absurd to think that such rights had been
hiding there, lurking in the ol’ penumbras, since the 18th flippin’ century,
waiting to be discovered by a committee of progressive lawyers who somehow see
the “real” Constitution that went completely undetected by the men who wrote
and ratified the document we actually have. That should be obvious even to
people who support abortion or gay rights or other things that have been
magically discovered in the Constitution. For the New York Times,
Justice Ginsburg was a “feminist icon.” And she was — but it was not her job to
be a feminist icon or to impose feminist ideology — or any other ideology
— on the law and on the American public, substituting her own desires and
preferences for those that are the result of the actual democratic process,
daft as it often is.
Justice Ginsburg’s using her position to try to impose a
feminist vision on federal policy ought to be recognized for what it was: an
abuse of power. If you want to rewrite the law along feminist lines, that’s
a perfectly honorable project — run for Congress.
The real fissure running through the Supreme Court is not
between so-called liberals and notional conservatives, but between those who
believe that judges are superlegislators empowered to impose their own vision
on society and those who believe that judges are constrained by what the law
actually says. The latter is the position of the Federalist Society and many
lawyers associated with it, and that this position — that the law says what it
says, not what people with power wish for it to say — should be controversial
is an excellent indicator of why faith in our institutions has eroded so
deeply. “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist
Society fanatic, Democrats should pack the court,” reads the line over Michelle
Goldberg’s New York Times column. Read that and ask yourself who the fanatic
really is.
(And: Whose seat?)
This should be obvious enough even to people who share
Ginsburg’s ideology and political preferences. Maybe you think that the federal
law should enshrine an unassailable right to abortion, or that the Bill
of Rights shouldn’t protect the right to keep and bear arms as broadly
and explicitly as it does. Many people would agree with you, and there are
reasonable if erroneous good-faith arguments for those positions. But that
is not what the law actually says. So, take it to the voters. In the case
of abortion, that would have meant a state-by-state fight in the legislatures,
which probably would have resulted in an abortion regime that is neither as
permissive as the one we have nor as restrictive as abortion opponents would
like, i.e., one that more closely resembles the actual position of the American
electorate. (A large majority of Americans believe that abortion should be
legal in the first trimester, and even larger majorities believe it should be
restricted in the second and third trimesters.) In the case of gun control,
proceeding legitimately would mean repealing the Second Amendment in order to
impose the restrictions that progressives want but that are prohibited by the
Bill of Rights. Yes, both of those would be long, hard, ugly, and frustrating
fights that would almost certainly leave both sides partly unsatisfied — i.e.,
democracy.
It is, of course, much more tempting to get five allies
on the Supreme Court to pretend that what you want is already mandated in the
law, waiting to be discovered. And that was Justice Ginsburg’s specialty. Her
most famous decision, outlawing the Virginia Military Institute’s single-sex
admissions policy, was exactly the kind of thing you would expect from a
“feminist icon” but shoddy — indeed, preposterous — as law. As Justice Antonin
Scalia notes in his scathing dissent in the VMI case, other publicly funded
military academies had changed their admissions policies, “not by court decree,
but because the people, through their elected representatives, decreed a
change.” What Justice Ginsburg was engaged in by inventing a prohibition on
single-sex military academies was “not the interpretation of a Constitution,
but the creation of one.”
Maybe Ginsburg was right to believe what she believed.
That is irrelevant. The question is not whether VMI should have been admitting
women, but whether the Constitution prohibited VMI’s policies and empowered
activists such as Justice Ginsburg to replace those policies with others more
to the liking of the nation’s progressive lawyers. It didn’t and doesn’t.
Neither the text nor the history nor practice justified Justice Ginsburg’s
decision — only her own sense of morality did. Her opinion is not legal
reasoning — it is legal decoration, reverse-engineered and fitted to the
decision she was committing to making for political rather than legal reasons.
Oh, but everything is political! they’ll say. I do
not believe that judges are incapable of actually doing their jobs even if that
means following the law to results other than the ones they would prefer —
Justice Scalia’s account of the flag-burning issue is one example showing that
it can be done the right way — but doing so would mean trying to do that job
rather than treating the federal bench as a stage for score-settling,
advantage-seeking, and constituent-servicing. If you don’t believe that judges
should be constrained by the law — that power is power is power and that’s that
— then you don’t have much of an argument against Donald Trump and Mitch
McConnell filling this seat, which is not “Ginsburg’s seat.” And unlike Justice
Ginsburg, who made up the Constitution as she went along, in this case Trump
and Senate Republicans would be acting within their plain constitutional
powers. In contrast to Ruth Bader Ginsburg, feminist icon, they would be doing
their jobs.
The timing of Ginsburg’s death is a political
inconvenience for Democrats — them’s the breaks. Trying to convert this into a
question of principle is silly and dishonest. Yes, lots of Republicans said
last time around that we shouldn’t confirm a justice right before an election.
Lots of Democrats said last time round that we should. Handing out indictments
for hypocrisy in Washington is like writing up people in New Orleans at Mardi
Gras for public intoxication. Nobody doubts that the charge is a valid one,
but, please, spare us the shock and sanctimony.
And after the slandering of Robert Bork, Clarence Thomas,
and Brett Kavanaugh, arguing that Republicans should decline to move forward on
the nomination for comity’s sake is laughable. Nobody believes for one second
that if President Hillary Clinton were struggling toward an uncertain
reelection campaign and Senate majority leader Chuck Schumer had the chance to
confirm a new Supreme Court justice of her choosing that the Democrats would
hesitate for a second. Nor have they ever shown themselves interested in
replacing “conservative” justices — meaning those who are not open partisan
campaigners on the model of Ginsburg — with conservatives or moderates in the
name of ideological balance. The Democrats put left-wing activists on the Court
when they get the chance, even if, like Elena Kagan, they have to lie their way
through their confirmations to get there. Democratic complaints about political
hardball after the outrageous campaign of fantastical fiction and slander
directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett
by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is
threatening to create a constitutional crisis through a Court-packing scheme if
a Democratic president and Senate are elected, threatening (more) riots and
(further) arson, and other attempts at extortion.
On the matter of the Court-packing endorsed by Michelle
Goldberg et al., Democrats should be careful about the precedents they set.
Republicans may learn slowly, but they learn. Democrats spent generations
engaged in partisan gerrymandering and then suddenly got religion on that
subject when Republicans got good at it. They didn’t think their slander of
Robert Bork and the politicization of the nomination process would come back to
bite them, but it did. Mitch McConnell believed the politics were on his side,
and he was right. A Democratic Senate might reorganize the federal courts in a
way that gives their party a momentary advantage — which is banana-republic
stuff, but that is what Michelle Goldberg of the Times advocates, and
she is not alone — but there will be a Republican majority again. There’s one now.
Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s
hand? Because the genie doesn’t go back into the bottle.
Justice Ginsburg could have retired some time ago — and
probably should have. But she believed in 2016 that Hillary Rodham Clinton was
going to win the election, and so she held on. That was a political miscalculation.
But that happens from time to time. Dwight Eisenhower was asked about the
greatest regrets of his time as president, and he answered: “I have made two
mistakes, and they are both sitting on the Supreme Court.”
Ginsburg’s legacy is not a body of legal opinions but a
deformed and disfigured judiciary, one in which the American people have — with
good reason — lost some measure of faith. Setting that right will be the work
of a generation. And that work begins with understanding that a judge’s concern
is not justice or fairness or progress but the law, and that people who want to
change the law should run for office.
The alternative is not a panel of philosopher kings but
the “nine-headed Caesar” that Justice Scalia warned us about.
In Closing
T. S. Eliot believed that “the Church must be forever
building, and always decaying, and always being restored.” The republic, too.
First principles and basic truths must always be reestablished and restored,
because they are always being forgotten or perverted. (Right-wing complainers
who expect permanent and irreversible conservative victories do not understand
history, or conservatism.) The purported radicalism of Antonin Scalia
and Clarence Thomas is simply the understanding that we write laws down for a
reason. That doesn’t mean that they cannot be changed, but it is not the role
of judges to change them, and we could save ourselves a tremendous amount of
grief if we simply agreed to that and lived by it. We need judges who will do
that, of course, but, first and supremely, we need citizens who demand it.
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