Ruth Bader Ginsburg Says Conservative Justices Are Judicial Activists. Isn’t She Guilty, Too?

Credit: WhitehouseCredit: WhitehouseIn a recent interview with USA Today, Supreme Court Justice Ruth Bader Ginsburg took a shot at her conservative colleagues, tarring them with the brush of judicial activism:

"The court has the reputation of being conservative, but if you take activism to mean readiness to strike down laws passed by Congress, I think the current court will go down in history as one of the most active courts in that regard," she tells USA TODAY in a rare interview.

On the one hand, she has a point. The Supreme Court under Chief Justice John Roberts has indeed voided a number of duly-enacted congressional statutes over liberal dissents, such as the campaign finance restrictions sent to history’s dustbin in Citizens United v. Federal Election Commission. But of course Ginsburg and her fellow liberals have also done their share of active judging against the will of Congress, most recently in the case of United States v. Windsor, where they struck down Section 3 of the Defense of Marriage Act, which passed Congress by wide margins and with large amounts of Democratic support. Doesn't that make her a judicial activist, too?

Perhaps it would be best to stop pretending that deference to Congress was a worthy judicial goal, and instead focus on making the best constitutional arguments in each case.

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  • bmp1701||

    If "activist" means "ready to strike down unconstitutional laws," the Court should be flamingly activist. They're supposed to be enforcing the Constitution, not the popular will.

  • gaijin||

    They're supposed to be enforcing the Constitution, not the popular will.

    indeed. if they are to defer to congress in every case, then why should the court even exist?

  • AdamJ||

    Agreed. Deference sucks. So does precedent. I understand wanting a predictable legal system, but if legal precedent is bad, it's gotta go. I think one of the issues is that these justices are such blowhards and feel compelled to write a 20 page opinion when all they need to do is rubber stamp a) constitutional or b) unconstitutional. All this extra writing provides for a lot of confusion for future justices.

  • Archduke Trousersenthusiast||

  • Eduard van Haalen||

    "if you take activism to mean readiness to strike down laws passed by Congress"

    Uh, no. I once used that definition, but today I'm more inclined to define activism as rewriting the law under the guise of interpreting it. So if a court basically rewrites the Commerce Clause to give Congress more power, it's being activist.

  • Eduard van Haalen||

    In other words, they shouldn't be allowed to say, "we can't be activist - we're just taking the side of Congress!" because that doesn't have the sort of reassuring sound that she seems to think it does.

  • Eduard van Haalen||

    And in cases involving Art. I Sec 8 (powers of Congress), deferring to Congress means *not* deferring to the states. In saying that Congress can do X, you're saying that Congress can supersede the states on X issue, regardless of what the states want. Letting Congress require that people buy insurance means that the states can't set up their own, conflicting policy. Congress doesn't have any more democratic legitimacy than a state's voters, its legislature, or local governments. There's nothing inherently democratic about saying Congress is entitled to cringing deference while state and local voters/governments should be stomped on.

    As for pure human rights issues, where individual rights trump all democratic regulation, the courts *should* be looking out for these rights when authorized by the Constitution to do so.

  • Sigivald||

    Indeed, that was exactly the problem I had with her statement - "if you take activism to mean...".

    Yes, Justice Ginsburg, if you accept that definition of the word, then "activist".

    But that's not what I think "activist court" means.

    It doesn't mean "doesn't just accept whatever Congress wants". (Or "doesn't just accept what the minority party in Congress wants", either.)

    It means "enforces what it wants - as opposed to what the Constitution requires".

    The court's job is to keep the Executive and Legislative branch from exceeding the lawful bounds of their power - not to "defer" to what Congress would like its powers to be.

    (Now, on matters merely prudential, it should bow to Congress wherever possible, lest it become activist in my usage.

    The Court is not there to say "X is bad policy, so no X". Congress is free to pursue absolutely horrid policies free of Court interference, so long as the horrid policies are Constitutionally acceptable.

    When the Court strikes down a law or a policy, not because it's repugnant to the Constitution, but because it makes the Justices sad - or whatever their damned excuse is - then we have an activist court.)

  • Juice||

    I'm more inclined to define activism as rewriting the law under the guise of interpreting it.

    Sorry, but the concept of a penaltax has been around for a long time.

  • Neoliberal Kochtopus||

    "if you take activism to mean readiness to strike down laws passed by Congress"

    Well, that isn't what activism means. So *barf*.

  • Eduard van Haalen||

    In think Ginsburg wants to conflate the various meanings of activism in order to be able to say "everyone does it, so we should, too! And our activism is on behalf of good causes, unlike that mean old conservative activism."

  • ||

    How hard is it to read the goddamn Constitution? McCain-Feingold blatantly flew in the face of the First Amendment that said CONGRESS SHALL MAKE NO LAW..abridging the freedom of speech.

    It isn't activism if you're keeping the Congress and the government within bounds. Activism is reinterpreting statute and the Constitution to permit an expansion of government authority.

  • wareagle||

    it's very hard, written by dead white guys who talked with accents and used words no one uses today. Some of them even owned slaves.

  • ||

    Yes, it's well known that in 1790 "SHALL MAKE NO LAW" meant "CAN MAKE ANY LAW THEY DAMN WELL PLEASE".

  • ||

    It's interpretation all the way down.

  • BiMonSciFiCon||

    Duh, complex economy. And hurt feelings. Or something.

  • BiMonSciFiCon||

    Oh and I forgot the obligatory "KOCHPORATIONS"

  • Boisfeuras||

    Exactly, there were no such thing as a limited liability corporation way back then.

  • BiMonSciFiCon||

    "Perhaps it would be best to stop pretending that deference to Congress was a worthy judicial goal, and instead focus on making the best constitutional arguments in each case."

    "Hahahahahaha" -My con law professor.

  • AdamJ||

    And everyone else's too. Including my wife's. all bullshit.

  • ||

    Been thinking about this a lot lately. I've heard it said that the default of the court is to allow congressional law to stand where it can. Hence, the penaltax.

    I think it's pretty obvious that the founders intent with the constitution was to limit government power and ensure the rights of the individual.

    Seems to me that, following the intent of the document, the default should be exactly the opposite. The court is supposed to be a check on the other two branches and should try to limit government expansion of power wherever it can.

  • BigT||

    "if you take activism to mean readiness to strike down laws passed by Congress, I think the current court will go down in history as one of the most active courts in that regard,"

    Immense stupidity from that one. Let's hope she croaks on Jan 21, 2017.

  • R C Dean||

    Any time after election day in 2016 will be fine, really.

  • buddhastalin||

    I bet she will quit by election day of next year so that BO can pick her successor while he still has a Democratic Senate.

  • paranoid android||

    High school US history taught me that the Founders intended basically no substantive powers for the judiciary, but then John Marshall went and took everyone by surprise by inventing judicial review when he struck down that law in Marbury v. Madison (like nearly all things I learned in high school, I have little way of knowing if this is actually true).

    Which would mean that the touchstone Supreme Court case that everyone gets taught about was a bald-faced move of judicial activism, was it not?

  • ||

    I've read the same. But without judicial review, Congress would go unchecked. You think it's bad now?

  • Juice||

    They could be checked by the states, which is what the whole Virginia and Kentucky Resolutions were all about. But being checked through judicial review is superior. I just wish there were a separate set of justices that only did that and did it right after the law is passed, not waiting around for someone "with standing" to sue.

  • R C Dean||

    The Constitution never explicitly states that SCOTUS has the power to strike unconstitutional laws. However, the Constitution is the supreme law of the land, and so a court charged with applying and enforcing the law has little choice but to disregard (which is to say, strike) laws that violate the supreme law of the land.

    I don't think judicial review is really judicial activism at all. I think its one of those things the Founders would be dumbfounded to learn people thought had to be said out loud, in declarative sentences using very short words.

  • Eduard van Haalen||

    The activism in that case was interpreting the statute to be unconstitutional, so as to provide an excuse for a discourse on judicial review. They could have give the statute an interpretation consistent with the Constitution, but wouldn't have allowed them to make a dramatic gesture.

    But as to judicial review, that seems to make sense, if we interpret it to mean that within its own sphere, the judiciary should interpret the constitution as the judges understand it, not as Congress or the President understands it. Not to be confused with judicial *supremacy,* which makes the Court into a secular Magisterium whose opinions must always be followed. The Congress and the President should make their own interpretations, and if this results in gridlock, well, durn, that's just too bad, isn't it?

  • Boisfeuras||

    Montesquieu was a strong influence on the founders, and he was explicit that each branch must check the power of the others to preserve liberty. The courts cannot do that if they do not interpret the law, rather than just enforce them as written by the legislature.

    Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
  • Jayce||

    High School history is worth what you pay for it.

  • Mickey Rat||

    "...if you take activism to mean readiness to strike down laws passed by Congress..."

    Then you've defined activism as something different then most people using that term mean, you mendacious little troll.

  • AdamJ||

    Easy tiger. It does seem that there are at least 3 distinct definitions of "activist." First being "doesn't defer to congress" and second being, "re-writes sections or all of laws through opinions," and third being, "doesn't follow precedent." I'm very much in favor of 1, in favor of 3 if precedent is particularly bad, and not much in favor of 2. As with everything, the definition is important because conservatives and liberals have very different definitions for the term "activist" and I would suggest that libertarians have a third definition.

  • Gilbert Martin||

    The court has the reputation of being conservative, but if you take activism to mean readiness to strike down laws passed by Congress..."

    I don't take it to mean that because it DOESN'T mean that.

    Liberals like Ginsburg have adopted that definition as a means to accuse the other side of being "activist"

    It's only judicial activism when a judge deviates from enforcing the literal langauge of the Constitution as per the original understanding of what those words meant by those who drafted them and those who ratified the Constitution.

  • R C Dean||

    "Judicial activism" is a term that has been gutted of all meaning by partisan shills.

    It originally meant legislating from the bench, issuing opinions and orders beyond the purview of a court of law. Now it means doing something, anything, the speaker doesn't like.

    Under the original meaning, striking down a law on Constitutional grounds was in no way, in fact maybe even the opposite of, judicial activism.

  • Jayce||

    "but if you take activism to mean readiness to strike down laws passed by Congress"

    That's the constitutionally established job of the supreme court, you incredible twit.

  • Marshal||

    but if you take activism to mean readiness to strike down laws passed by Congress,

    This is the most ridiculous argument ever made. Literally no one defines juducial activism this way (other than those trying to excuse it).

  • maureen||

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