by Mitch Kokai
Senior Political Analyst, John Locke Foundation
This weekend was not the first time Ginsburg has spoken less than discreetly about a hot-button issue. When she criticized Roe v. Wade at the University of Chicago in 2013, it was not because of anything the decision had or had not done; it was because it “stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures.” “It seemed to stop the momentum” toward the reduction of abortion restrictions, she lamented.
When the feminist outlet Jezebel reported this remark, it worried in passing that Ginsburg might be “hesitant to pass anything broad-sweeping when it comes to marriage equality rulings.” Precious. Not only is Ginsburg the go-to justice for same-sex-wedding officiating, but she is currently featured in advertisements by the Human Rights Campaign. “Supreme Court Justice Ruth Bader Ginsberg [sic] agrees Americans are ready for marriage equality,” the ad declares.
For Ginsburg, the law is an instrument toward political ends. When she declared in her 1993 confirmation hearing that her reading of the Constitution relied on “the climate of the age,” she was offering not an interpretive rule, but a political one. The jurist who thinks there are “populations that we don’t want to have too many of” (three cheers for Roe for helping out with that!) is really just waiting for the climate of the age to catch up with her fevered pursuit of justice. Someday we yokels will see that a good eugenics program is just what we need.
The acclaim for Ginsburg’s distinguished legal career is, then, really acclaim for her unorthodox political career. Go back to those dissents. If you read reports from left-wing media, Ginsburg is the Jon Stewart of Supreme Court opinions: her dissents are “ferocious,” “withering,” “blistering,” “barbequing,” and (my personal favorite) “disemboweling.” Justice Scalia, eat your heart out!
But Ginsburg gets her dissents made into songs not because they actually eviscerate opponents’ arguments, but because she is already an icon. The whole arrangement is backwards, to wit: She is not a feminist hero because she is (in the words of Rebecca Traister, writing at The New Republic) “bone-crushingly robust yet simultaneously appealing”; she is “bone-crushingly robust yet simultaneously appealing” because she is a feminist hero.