Calvin Freiburger

Ruth Bader Ginsburg’s Magical Mystery Tour of Left-Wing Thought

Posted on July 9 2010 5:00 pm
Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College. He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.
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Come, gentle readers, gather ‘round as we embark on a tour of the leftist mind. ‘Tis a wondrous place where up is down and black is white. Our guide will be the Daily Beast’s Lloyd Grove, who reports on a recent speech by Supreme Court Justice Ruth Bader Ginsberg.

Ginsburg was introduced to the crowd by an admiring O’Connor, who became history’s first female justice when she was appointed by Ronald Reagan in 1981. The 80-year-old O’Connor noted that Bill Clinton “exercised very good judgment” in picking Ginsburg for the court, and praised her “inimitable flair for legal decision-making and her excellent writing skills. She’s been a great member…I know that she is looking forward to getting another woman on the court.”

Yes, because we all know that only ethnic and gender diversity can ensure a proper reading of constitutional law.

Noting that as a law professor, [Elena] Kagan once wrote that “she wished I and Steve Breyer had been a little more revealing” during their confirmation hearings, Ginsburg quipped: “She’s older and wiser now. She steered the same course that we did. I thought she was terrific.” She added that “it takes two qualities” to get through a Senate confirmation hearing. “One is patience, and the other is a sense of humor—and she showed both.”

“Older and wiser.” It couldn’t possibly have anything to do with the fact that Kagan didn’t imagine that she’d one day be the one under scrutiny, and that self-interest, rather than wisdom, might be leading her to withhold opinions she once thought the Senate needed to make a fully-informed decision.

On the landmark Roe v. Wade decision, which made a first-trimester abortion a constitutionally protected right, “We will never go back to the way it once was,” Ginsburg declared, to huge applause. “It wasn’t all that controversial. It was a 7 to 2 decision with only two dissenters.” If the court were to change its mind, “there won’t be any real change for anyone in this audience or any daughters of anyone in this audience,” Ginsburg said. “The only women who would be truly affected are poor women. Because even at the time before Roe, women who wanted abortions could have a safe, legal abortion…Women could travel from one state to another and didn’t have to go to Japan or Cuba…Whatever the court may do, it’s only the poor women who will suffer. When people realize that, maybe they will have a different attitude.”

It’s refreshing to see a leftist admit what overturning Roe would actually do (even with a little class warfare thrown in), but I wasn’t aware that the judgment of a whopping nine people defined whether or not something is controversial. If we’re judging by what the American people though, the issue was a little more contentious.  In October 1994, Russell Hittinger wrote in First Things (subscription required, excerpt reprinted in Ramesh Ponnuru’s The Party of Death) that:

In 1971, on the eve of Roe v. Wade, repeal bills were voted down in Montana, New Mexico, Iowa, Minnesota, Maryland, Colorado, Massachusetts…Connecticut, Illinois, Maine, Ohio, and North Dakota. In 1972, even as Roe was under consideration by the Supreme Court, the Massachusetts House by a landslide vote of 178 to 46 passed a measure that would have bestowed the full legal rights of children on fetuses from the moment of conception…during the very month that Justice Blackmun finished the draft of his Roe opinion, 61 percent of the voters in Michigan and 77 percent in North Dakota by referenda voted down repeal…At the time of Roe, there was evidence that the tide of opinion in New York had shifted back toward laws protecting the unborn.

Ginsburg next takes a surprising detour into sanity with a common-sense judgment about Congress’s overly broad “honest services” law, which the Court unanimously struck down. But right afterward, we’re back into nonsense:

She agreed with Rosen that Scalia is one the more “activist” justices on the court, voting strike down federal and state laws with much more frequency than the relatively restrained Ginsburg.

The mere act of striking down a law isn’t “activist” by any reasonable definition, nor is it what those of us opposed to judicial activism are talking about, and Ginsburg knows it. If a law is unconstitutional – say, a federal ban on selling the works of George Orwell – then you strike it down. If the Constitution does allow a law – like a state setting its own definition of civil marriage – you let it stand.  This is simple interpretation and application of the law. Judicial activism, on the other hand, is when you make judicial decisions based on criteria other than what the text says or the original intent of the law’s authors, like ideology or personal preference. By trying to confuse people about what judicial activism is, the Left hopes to trick the public into thinking it’s something each side does just as often and keep them from recognizing actual judicial activism when they see it.

We hope you’ve enjoyed this brief tour through the mind of a liberal jurist. It’s a curious place to visit, but you wouldn’t want to live there.

Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College.  He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.

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