The late Justice Ruth Bader Ginsburg has been honored with a new Forever stamp issued by the Postal Service. At the risk of understatement, she would not have been my choice for that honor. Her theory of an ever-changing Constitution often translated into treating the Supreme Court like a policymaking body in which judicial aggrandizement trumps the rule of law. In a pluralistic democracy, however, it has been tradition for Americans of differing views to accept that honors – from carved memorials to postage stamps – are not confined to leaders who belong to their favored political or ideological factions. And I, of course, acknowledge that Ginsburg was a trailblazing and hard-working advocate and jurist.
Yet when I see the effusive tributes (including operatic serenades) lavished on her during ceremonies like the October 2 stamp unveiling, I cannot help but think of the glaring double standard, about which I recently wrote, that allows the mistreatment of her surviving colleagues.
In the spirit of our pluralistic democracy, we should consider the glaring inequity in the selection of justices who have received this special honor from the Postal Service.
Ginsburg is the fourteenth Supreme Court justice to appear on a postage stamp. She is the fifth justice on that list who served on the Court within the last sixty years, joining Hugo Black, Earl Warren, William Brennan, and Thurgood Marshall. While the definitions of judicial conservatism and liberalism have shifted over the years, all five were noted members of the Court’s liberal bloc in their respective times (even if Black became less so during the last years of his long tenure).
Six of the justices previously on stamps were chief justices, most recently Warren. Why not include in that pantheon William Rehnquist, who served on the Court for over 33 years, almost 19 of which were as chief?
Rehnquist’s was a steadfast voice against the judicial excesses of his time while he earned the esteem of justices of all ideological stripes. The only chief justices who served as long as he did in that role and did not get a stamp were Roger Taney, author of the execrable Dred Scott decision, and Melville Fuller, whose Court, with his vote, handed down other execrable decisions in the age of Jim Crow, including Plessy v. Ferguson. Rehnquist’s 100th birthday is one year away, so the timing is perfect.
And if any deceased justice in living memory deserves a postage stamp, it is Antonin Scalia. A trailblazer in his own right, Scalia was the first Italian American on the Court and a brilliant originalist thinker and writer who left “an indelible mark” on the Court, to quote Justices Sandra Day O’Connor and Sonia Sotomayor, two colleagues with whom he often differed. Or how about this tribute, from none other than Justice Elena Kagan: “Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law.” His impact on the Court frankly surpassed that of his friend Ginsburg and so many others.
The Postal Service should correct its ideologically skewed record and cue up Chief Justice Rehnquist and Justice Scalia for an honor they earned by their exemplary service. Give them each a stamp.