The New York Times upbraids Justice Ruth Bader Ginsburg in an editorial today. The editors are concerned about remarks Ginsburg has made that are
critical of the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. It is not the judgment that was wrong, but “it moved too far, too fast,” she said at Columbia Law School last year, a view she has expressed in various speeches and law review articles. As one of the court’s moderate liberals and a champion of women’s rights, she is now being routinely cited to argue for a timid resolution on the issue of same-sex marriage that would strike down California’s ban on such marriages, but would leave prohibitions standing in about 40 other states.
The Times is concerned that Ginsburg has contributed to what it claims is a false story of “backlash” against Roe that might have been avoided if the Court had taken more of a “go slow” approach in 1973. The editors make claims about the state of things in the 1970s–whether and why the pro-abortion movement was stalling out before Roe, and whether, how soon, and how much there was a “backlash” against the ruling–that I will leave to historians and other close students of these things like Michael New and Ramesh Ponnuru.
But I have to say (and never thought I would say) that I am completely in agreement with the Times about the role of principle in Supreme Court decisions: “fear of an angry reaction from some groups cannot be the reason to deny people basic rights.” Exactly right. First and last and in between, we must know, what are people’s basic rights? If we have answered that question, no question of the political fallout for vindicating those rights–or for ruling that they are not “rights” at all, if that is the correct legal conclusion–should intrude on judicial decision-making.
What has always been rather disturbing about Justice Ginsburg’s repeated comments on the politics of Roe is the fact that she is commenting on the politics of Roe! This habit of hers bespeaks an attitude toward law itself, and the Constitution as the supreme law, that treats it as instrumental to the advancement of ideological projects. “What will help advance a political agenda?” and “What will hinder it?” and “What might seem like a gain but could cause a backlash?” are not even remotely the sorts of questions with which judges ought to concern themselves. Yet these are the sorts of questions that seem to interest Justice Ginsburg when she discusses the Roe decision.
At the Times, of course, the editors are full-tilt ideologues in search of results from the Court. It is hard to believe that they believe there are any enduring principles of the Constitution that are not simply identical with the current fashions of coastal liberalism. But in their eagerness to advance the ludicrously implausible cause of a constitutional “right” to same-sex marriage, they have stumbled blindly over the rock of legal principle, and dimly perceived what they have barked their shin against.