“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”
And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?
Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.
If her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.
In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.
Now add to that a consideration that two weeks before she made those remarks, a federal judge in New Orleans upheld Louisiana’s same-sex marriage ban by arbitrarily asserting the state’s prurient interest in “linking children to an intact family formed by their two biological parents”. While we all know this sort of open idiocy is possible in our justice system, it should be noted that a week after Ginsburg made those remarks, a state judge in Louisiana slew the same-sex marriage ban, descrated the corpse, and buried the remains where no eye should ever witness.†
For superficial sentiments, it need not be that Ginsburg necessarily has any spectral influence over lower courts by her words; it is at least as likely in such a shallow context that Judge Rubin figured no federal such and such is going to come into Louisiana and tell good folks what parts of the Constitution to ignore. In truth, though, we need not appeal to such insinuations; Rubin simply did his job. Certainly, it seems nearly inevitable that a federal court would get around to such blind clodhopping as Judge Feldman managed in Robicheaux v. Caldwell. And for all the effort of Feldman’s laborious and disdainful idealism, all it really took was a shot of realism called Article IV.
Still, though, Ginsburg has become more vocal in recent years, stinging her male colleagues for their impossible resolution in Safford, and perhaps growing more and more exasperated as time and more cases have passed the Court.‡ We can expect that some will compare her public discourse to, say, Justice Scalia’s; reasonably educated observers should be able to tell the difference.
To style the Supreme Court as apolitical is inappropriate; it is one of the chambers at the heart of American political machination. But while judges generally, for sake of dignity, do not fight publicly in dueling sound bites, the stakes have gradually piled taller on the table. With justices accusing dereliction in conflicting rulings from Justice Alito, it would seem the politics on the Court have become especially raw.
It seems reasonable, all things considered, to conclude, accept, even expect that the Notorious R.B.G. is damn well aware of the political situation. We need not even point to her open discussion of political calculation, either.
Do we believe? We gotta believe. We’re not getting another one of these for a while, so if this one says she knows her course, we really should trust her hand at this helm. She’s not just any pilot. She’s the one and only Ruth Bader Ginsburg.
On paper, all things being equal, the analysis suggesting her retirement has some arguable merit. But all things are not equal. God save the Court? Well, good luck. Meanwhile, we’ve Justice Ginsburg, and while she ain’t God, it is certainly worth trying a little faith. And it’s far more rational.
She knows. And she’s not throwing down simply because she can. She does because she must, so it’s probably worth appreciating just how damn good she is at it.
†Judge Edward D. Rubin’s minute entry ruling is a work of sublime juristic brutality, absolutely unequivocal in its destruction of the marriage exclusion:
The court grants the Petitioners’ Motion for Summary Judgment and denies the Defendants’ Motion for Summary Judgment. It hereby declares that La. Const. Article XII, Section 15 (the Defense of Marriage Act/DOMA) and La. Civil Code Articles 86, 89, and 3520(B) are unconstitutional because they violate the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution and Article IV, Section 1, the Full faith and Credit Clause of the United States Constitution. Louisiana’s Reveunue Bulletin No. 13-024 (9/13/13) is likewise declared unconstitutional as it violates the petitioners’ rights guaranteed by the Due Process and Equal Protection Clauses of the 14th Amendment of the U.S. Constitution. Hence, Tim Barfield in his official capacity as the Secretary of the State of Louisiana Department of Revenue, is hereby ordered to act in accordance with this court’s ruling and allow the peititioners to file their state tax returns as a couple whose marriage is valid and recognized in Louisiana. The court hereby enjoins the state from enforcing the above referenced laws to the extent that these lws prohibit a person from marrying another person of the same sex. Additionally, having ruled that the petitioners’ marriage shall be recognized by the state of Louisiana, it follows that Angela Marie Costanza has satisfied the requirement of stepparent under the provisions of La. Ch. C. article 1243, which allows for intrafamily adoption. The court reaffirms its previous decision in Adoption of (__) which declared Angela Costanza’s adoption of (__) to be in the child’s best interest. The minor child, (__), is declared, for all purposes to be the child of petitioner, Angela Marie Costanza to the same extent as if (__) had been born to Angela Costanza in marriage. As such, the court further orders Devin George in his official capcity of the State’s Registrar of Vital Records, to issue a new birth certificate naming Angela Costanza as (__)’s mother.
The State of Louisiana is hereby ordered to recognize the Petitioners’ marriage validly contracted in California as lawful in this state, pursuant to the Full Faith and Credit guaranteed by Article IV, Section 1 of the United States Constitution.
‡ While Justice Ginsburg’s exasperation stemmed in large part from masculine insensitivity toward women—why would it bother a young girl to be forced to strip in order that hostile adults could examine her body closely for a rumor pushed by another student trying to get out of trouble?—we might also note the other sense of exasperation. Consider that in Safford, the majority came to the school district’s rescue by acknowledging that the strip search violated the law, but then cut officials a break because ignorance is bliss, or why make a big deal of it, or something. Meanwhile, in that same term, the Court ruled in Ricci that the New Haven Civil Service Board screwed up by following the law, and offered no good-faith forgiveness such as the majority invented in Safford By many measures, the Roberts Court has only gone downhill in subsequent sessions.
Benen, Steve. “Justice Ginsburg calls retirement talk ‘misguided'”. msnbc. 24 September 2014.
Robertson, Campbell. “Federal Judge, Bucking Trend, Affirms Ban on Same-Sex Marriages in Louisiana”. The New York Times. 3 September 2014.
Geidner, Chris. “Louisiana Judge Rules Same-Sex Marriage Ban Unconstitutional, Clashing With Federal Court”. BuzzFeed. 22 September 2014.
Feldman, J. Martin L.C. “Order and Reasons”. Robicheaux v. Caldwell. United States District Court Eastern District of Louisiana. 3 September 2014.
Lynch, Dennis. “Justices Sotomayor, Ginsburg and Kagan Write Blistering Dissent On New Supreme Court Contraception Ruling”. International Business Times. 3 July 2014.
Rubin, J. Edward D. “Minute Entry Ruling”. Costanza v. Caldwell. Fifteenth Judicial District Court. 22 September 2014.