Analysis

“Disdain for the entire judicial process”: Ruth Bader Ginsburg’s history on abortion

Ginsburg

As a judicial gatekeeper for the right to choose death, Ruth Bader Ginsburg enjoys rockstar status in pro-abortion circles, which is why MSNBC recently interviewed the Supreme Court Justice to get her thoughts on aspects of the country’s abortion debate that have even less to do with her job as constitutional interpreter than Roe v. Wade’s rationale does.

The interview is especially interesting in light of how Ginsburg has been making the rounds on other issues before the court. On Thursday, Ethics and Public Policy Center president Edward Whelan argued that recent statements she’s made about same-sex marriage require her to recuse herself from that case under both federal law and ethical standards that require judges not to publicly cast doubt on their own objectivity. At her own confirmation hearing, he notes, Ginsburg herself admitted:

A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Does she have a similar impartiality problem on abortion? Let’s see.

We will never see a day when women of means are not able to get a safe abortion in this country.

So you’re telling me the more money you have, the easier it is to skirt laws? Stop the presses! However relevant this point may be to the policy merits of banning abortion (not very), it tells us nothing about whether the Constitution entails a right to abort.

Referring to the cascade of state-level laws curtailing access to abortion, some of which may well end up before the Supreme Court in the near future, Ginsburg said, “All the restrictions, they operate against the woman who doesn’t have freedom to move, to go where she is able to get safely what she wants.”

This argument is only compelling if you accept the premise that any woman should be able to get an abortion in the first place, and again, even then only as a matter of policy, not jurisprudence. Nowhere does the Constitution say, “unless you can enforce a prohibition with perfect efficiency across the board, you mustn’t prohibit it in part or for anyone.”

Now, Ginsburg said, “I try to teach through my opinions, through my speeches – how wrong it is to judge people on the basis of what they look like, [the] color of their skin, whether they’re men or women. […]

And when the time comes, what would she like to be remembered for?

“Someone who used whatever talent she had to do her work to the very best of her ability,” Ginsburg said. “And to help repair tears in her society, to make things a little better through the use of whatever ability she has.”

These are noble sentiments on paper (if strikingly inconsistent with Ginsburg’s past remarks on Roe’s connection to “concern” over “growth in populations that we don’t want to have too many of”), but they have nothing to do with her job. Legal opinions are supposed to investigate what text actually means and, as close as we can determine, how its authors would have applied it to current controversies, not vehicles for a judge’s personal vision of what the law should have done. A good judge should be half legal technician, half historian…and zero percent politician. A proper reading of the Constitution will have the effect of teaching its values, not swapping them with the judge’s own.

It’s apparent that something other than originalism or textualism guided her votes in partial-birth abortion cases Stenberg v. Carhart and Gonzales v. Carhart, and abortifacient case Burwell v. Hobby Lobby, in which her dissent was riddled with factual errors and extra-constitutional arguments. But in Ginsburg’s case, it’s actually worse than that.

In the past, Ginsburg has criticized Roe as “heavy-handed judicial intervention [which] was difficult to justify,” lamentable because it “had given opponents of access to abortion a target to aim at relentlessly,” thereby “stopp[ing] the momentum that was on the side of change.” Instead, she would have rather seen the court “put its stamp of approval on the side of change and let that change develop in the political process.”

So on top of twisting the law to her own ends, here we have one of the most powerful judges in the land all but admitting a decision she’s repeatedly voted to uphold doesn’t actually deserve upholding, then openly arguing that SCOTUS should have made their decision based on what would have best promoted the culture’s long-term acceptance of abortion.

Ruth Bader Ginsburg may not have to run for re-election, but that doesn’t mean the rest of us are supposed to just sit down and take such lawlessness. Technically, the Constitution says that justices serve “during good behavior”—and provides for their impeachment when they betray their constitutional duty. In Ginsburg’s case, the good behavior standard ran out long ago.

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