#150 Ruth Bader Ginsburg

September 26, 2020

Before I start, I want to make it clear (full disclosure) that unlike Obama I am NOT a Constitutional Law Professor. However, since, like Obama, I have no published articles on any legal matters on my cv, I feel as free as he might to venture my opinions.

The adulation being heaped upon RBG is nothing less than nauseating. It appears to be a function  exclusively of the fact that she was female and “progressive.” Some would say also because she was Jewish, but given that the adulation is generated mostly by left-wing political considerations, her Jewishness is a plus only by current convenience.

What makes her canonization particularly offensive is that she was not merely an undistinguished jurist, but that she was actually a player in the Left’s program to transform the Court from its Constitutionally defined function into a supra-Congressional legislative body.

Make no mistake about this: a “progressive” member of the SCOTUS is an inside enemy of the SCOTUS.

The great victory of the post-WW II Left in the U.S. is that of transforming a revolutionary ideology into a mere “policy disagreement.” Progressivism is not a “loyal opposition” on the British parliamentary model, it is an ideology intent on, in Obama’s words, a “fundamental transformation of the society.” This means destroying what there is and building something new on the smoldering ruins. Treating Progressivism as a friendly partner in societal improvement is like assuming the Palestinians want to find a way to live together in peace with Israel. We’re watching the true face of Progressivism being revealed on a daily basis in the burning U.S. cities. In effect, the Lefties have come “out of the closet” and what we see is not pretty.

The notion that “conservatism” and “progressivism” somehow “deserve” to be, “need to be,” “balanced” on the court makes both the former and the latter political. In fact, the former should not be or be considered political, while the latter definitely is.

What I mean is that SCOTUS conservatism is nothing other than the position that the Constitution should continue to play the role defined for itself by the Constitution, that it should continue to exist in the form envisioned by the framers.

Progressivism, on the other hand, is committed to making the court an unofficial extension of the legislative process, precisely the opposite of what the Framers had in mind.

Thus, the idea that there are two “philosophies” of the SCOTUS is a convenient Leftist strategic fiction. There are not two “philosophies, there is just either governance by the Constitution or governance without one.

The SCOTUS was originally meant to perform an intentionally limited role, that of deciding whether a law is consistent with the principles enumerated in the Constitution. Yes or no.

The fact that the appointment of a new jurist is an object of violent contention shows in stark contrast that the Left has succeeded in turning the court into a political institution.

Progressives have a problem with the Constitution (Obama said that it is “outdated” and should be removed, and he was a “Constitutional law professor”). The problem for these revolutionaries is that the Constitution in its original form is an impediment to their totalitarian statist ambitions. More specifically, it is that the Constitution explicitly allocates to the federal government ONLY the powers and functions allocated to it by the Constitution. And what is not allocated to the federal government belongs to the individual states to decide. The document intentionally and explicitly places a definite limit on what the federal government can do. Even a “constitutional law professor” like Obama should be aware that the Framers were intensely aware of the states’ hostile suspicions of a central federal government and that they crafted the Constitution as a bulwark against federal power. The Constitution is intended to be for the  protection of the individual states against the federal government, not an instrument of federal power. But the goal of Progressives is specifically the incremental augmentation of federal power with themselves in charge.

Progressivism attempts to deal with this inconvenient restriction by arguing that the Constitution must be thought of as a “living document” which must take into account issues of which the founding fathers were simply unaware. Such a change would have the effect of defeating the precise intention of the framers, since it would allow (as it frequently already has) the court to address issues not given to the federal government by the Constitution. This is the neutralizing of the Framers’ intent.

They argue that the Constitution is “living” in the sense that what is written there can be “interpreted” as meaning either more or less what a literal reading of the words would support. But this is not what “interpret” means in this case. The intended role of the SCOTUS ab initio was to check whether legislation met Constitutional requirements, nothing more. The written decisions of the court accrue to the original document and become, in a sense, an extension of the document. Thus, each court must check challenged legislation against the original document as well as against all relevant subsequent decisions. This is, by intent, a purely scholarly, academic project, politically neutral.

Of course, times have indeed changed and the founding fathers knew nothing about the current state of, for example, reproductive science and its possibilities.

The key question here, however, is precisely what is the relevance of this fact to the nature of the SCOTUS and the Constitution?

The answer is: nothing.

All the changes of the modern world can be accommodated from a legal point of view exactly where the founding fathers located them: within state and federal legislatures. Of course, the Congress still retains the ability to legislate nationally on all matters explicitly granted to it.  And, really, it can rightfully pass any laws that are not rejected by supreme courts, either those of the states themselves or that of the nation.

From this point of view, RBG should not be lionized; rather she should be considered someone who should never have been appointed to the court in the first place. There should only be people on the court who are committed to the existing Constitution and its intended role.

Any fair minded observer must note that RBG is the very perfect model of an activist Judge, which is a judge who brings her personal political preferences to bear on her decisions. She made her feelings about Donald Trump public while still in office. What judge who takes the role of the Supreme Court seriously does that? It’s appalling and by itself sufficient to warrant contempt for her. And yet, while Lefties carry on about how she was afraid that President Trump would be able to fill her seat, her massive ego was such that she remained in office during the Obama years! Surely, were her Progressive objectives so important to her, she would have resigned at that time. After all, she was already in her 80s when President Trump took office. 

A second point. According to the Constitution, the President has complete power to nominate a person of his choice at any time within his term. The Senate can refuse to consent. But what must be emphasized is that the only legitimate ground for a refusal is that the nominee does not have the scholarly credentials to review legislation in the context of the Constitution and its written history of decisions. And even here, since every jurist has a small army of “clerks” who are expert and competent, this is a weak ground for refusal. RBG had around 150 clerks spread over her many years of obstructionism on the Court.

In effect, the very act of refusing a nomination implies that the real role of the court is being ignored and that the real issue is that of placing someone on the court who will represent a particular political point of view.

And for those, who like RBG don’t like the Constitution the way it is, they always have the legal expedient of attempting a revision or the creation of an entirely new one (the French are on their fifth one).

But it rather suits the purposes of the Left to retain the SCOTUS and the Constitution as a hollow pretense while using it to rule on whatever suits their personal moral and legal fancies.

Goodbye, RBG, RIP and may we never see your like again.