Supreme Court

The Case of the Notorious RBG

Examining the life and legend of Ruth Bader Ginsburg

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On June 14, 1993, President Bill Clinton announced his pick to replace retiring Justice Byron White on the U.S. Supreme Court. "Ruth Bader Ginsburg cannot be called a liberal or a conservative," Clinton declared of his nominee. "She has proved herself too thoughtful for such labels."

The president was half right. Ginsburg, who was 60 years old at the time, already had a long and distinguished record as a litigator, a law professor, and a judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit. She was undeniably thoughtful.

At the same time, Ginsburg was undeniably a liberal. Indeed, she was arguably one of the greatest liberal lawyers of her generation. Today, after serving 25 years on the high bench, Ginsburg stands as the outspoken leader of its liberal wing.

Meanwhile, outside of the courtroom, Ginsburg has emerged as a sort of judicial rock star. Popularly known among her fans as the "Notorious RBG" (a play on the name of the late rapper Notorious BIG), Ginsburg is now a bona fide celebrity, widely feted throughout American culture. In the last few years alone, she has been the subject of admiring books, including a fawning new biography by historian Jane Sherron De Hart (Ruth Bader Ginsburg: A Life), a glowing documentary (RBG), and a celebratory exhibit at the Skirball Cultural Center in Los Angeles (Notorious RBG: The Life and Times of Ruth Bader Ginsburg). Late Show host Stephen Colbert has interviewed her about her fitness regime. Saturday Night Live has paid tribute to her in a series of skits. Felicity Jones, the star of the 2016 Star Wars movie Rogue One, will be playing her in a new feature film.

As for Ginsburg's legions of fans, they are not exactly shy about showing their love. They carry RBG tote bags, drink from RBG coffee mugs, and use smartphones housed in RBG cases. They wear RBG T-shirts, hats, jewelry, even Halloween costumes. On the internet, Ginsburg memes and viral videos are common currency. Search the web for "Ruth Bader Ginsburg tattoos" and you'll find many colorful results. As the journalist Irin Carmon writes in the introduction to her runaway 2015 bestseller, Notorious RBG (HarperCollins), "we are frankly in awe of what we've learned about her."

In short, it's become fashionable to make a fuss about Ginsburg's gloriousness. While her life and accomplishments are genuinely impressive, though, the Notorious RBG is far from perfect.

Liberal Leader

On March 24, 2009, Deputy Solicitor General Malcolm Stewart told the Supreme Court that the federal government possessed the lawful power to ban books if those books happened to mention the name of a candidate for federal office and were published by a corporate entity in the run-up to the federal election in which that candidate was competing.

"It's a 500-page book, and at the end it says, so vote for X, the government could ban that?" asked an incredulous Chief Justice John Roberts during that day's oral arguments in Citizens United v. Federal Election Commission. Yes, the deputy solicitor general conceded. Under the government's theory of the case, that's precisely what he was saying. "We could prohibit the publication of the book," Stewart declared.

Ten months later, a majority of the Supreme Court rejected that view, overturning the campaign finance regulations at issue for violating the First Amendment. Among the dissenters was Justice Ruth Bader Ginsburg, who was apparently untroubled by the censorious implications of the government's stance. Two years later, Ginsburg urged her colleagues to hear a new case that would give "the Court the opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."

It was a familiar scene. Since joining the Court in 1993, Ginsburg has, in case after case, proven herself to be a reliable champion for the liberal side. When the Court declared the University of Michigan's affirmative action program for undergraduate admissions unconstitutional in Gratz v. Bollinger (2003), Ginsburg accused the majority of turning a blind eye toward "the stain of generations of racial oppression [that] is still visible in our society." When the Court came within one vote of declaring the Patient Protection and Affordable Care Act unconstitutional in National Federation of Independent Business v. Sebelius (2012), Ginsburg denounced the "stunningly retrogressive" idea that Congress might lack the lawful power to force individuals to buy health insurance.

In 2005, when the city of New London, Connecticut, wanted to broaden its tax base by bulldozing a working-class neighborhood and handing the land over to private developers, Ginsburg dismissed the homeowners' constitutional objections out of hand. "The critical fact on the city side," she told Institute for Justice lawyer Scott Bullock, lead attorney for the homeowners, during oral arguments in Kelo v. City of New London, "is that this was a depressed community and they wanted to build it up, get more jobs." Ginsburg went on to join Justice John Paul Stevens' majority opinion, which upheld the city's eminent domain scheme on the grounds that government officials should enjoy "broad latitude in determining what public needs justify the use of the takings power."

Select almost any case that has divided the Supreme Court along ideological lines in recent years and you'll find Ginsburg firing similar salvos from the left.

The Feminist Lawyer

Ginsburg began her legal career in the mid-1950s as a top student at Harvard Law School, where she faced blatant institutional sexism at nearly every turn. She was prohibited, for example, from using Lamont Library, which held the university's large collection of old magazines and journals—essential fodder for legal research—because entry was officially restricted to men. A few years later, she was passed over for a well-deserved Supreme Court clerkship with Justice Felix Frankfurter, a New Deal–era legal icon, because Frankfurter had no interest in hiring a woman.

Despite these and other obstacles, Ginsburg proceeded to leave her mark on the law. Most notably, she co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) in 1972; she would also serve as an ACLU board member. Taking a page from National Association for the Advancement of Colored People lawyer (and future Supreme Court justice) Thurgood Marshall, the architect of the campaign to overturn Plessy v. Ferguson (1896) and its racial doctrine of "separate but equal," Ginsburg took the lead in developing a long-term legal strategy designed to unsettle and ultimately overturn those Supreme Court precedents that formally enshrined the inequality of women.

Will Justice Ruth Bader Ginsburg be remembered as a legal trailblazer or burned in effigy for not stepping down while Obama was President?

One such precedent was Muller v. Oregon (1908), in which the Supreme Court had unanimously upheld a state law limiting female laundry employees to working no more than 10 hours a day. The Court did so thanks in large part to an infamous brief, filed in the case by Progressive Era lawyer (and future Supreme Court justice) Louis Brandeis, who marshaled a mountain of arguments and statistics "proving" that women required special protection by the state. "The overwork of future mothers," he wrote, "directly attacks the welfare of the nation." In other words, Brandeis maintained, because women are responsible for giving birth to future generations, their bodies should be viewed as a sort of collective property in the eyes of the government.

The Supreme Court would adopt that very view. "As healthy mothers are essential to vigorous offspring," the justices declared, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."

Ginsburg also set her sights on Goesaert v. Cleary (1948), in which the Court had upheld a Michigan law forbidding women from working as bartenders unless they were "the wife or daughter of the male owner." Valentine Goesaert, who owned a bar in Dearborn, challenged the law for violating her right to tend bar at her own establishment. "We cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling," wrote Justice Felix Frankfurter (the same justice who later refused to hire Ginsburg as a clerk). In fact, he declared, "Michigan could, beyond question, forbid all women from working behind the bar."

Ginsburg and her allies proceeded to litigate a series of test cases, all aimed at destroying the legal rationales underlying those sexist precedents. "The 1970s cases in which I participated under ACLU auspices," Ginsburg later explained, "all rested on the same fundamental premise: that the law's differential treatment of men and women, typically rationalized as reflecting 'natural' differences between the sexes, historically had tended to contribute to women's subordination—their confined 'place' in man's world—even when conceived as protective of the fairer but weaker and dependent-prone sex."

One such test case came to be known as Craig v. Boren (1976). At issue was an Oklahoma law that prohibited the sale of "near beer" (3.2 percent alcohol by volume) to males under the age of 21, while at the same time allowing women ages 18-20 to purchase the beverage. The state justified this uneven approach as a legitimate exercise of its public health and safety powers on the grounds that men are less responsible drinkers.

Ginsburg saw it as an unconstitutional denial of equal treatment and went on the attack. First, she worked as a sort of unofficial co-counsel to the private lawyer who initially filed the case, providing crucial strategic advice as well as many useful tips on writing a better SCOTUS brief. She also filed a weighty amicus brief of her own on behalf of the ACLU, which argued that the state's ostensible health and safety justifications could not stand up to scrutiny.

The Supreme Court ultimately agreed with that assessment. "Clearly, the protection of public health and safety represents an important function of state and local governments," the Court observed. Oklahoma's claims, however, "cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot…withstand equal protection challenge."

To be sure, Ginsburg and her allies did not prevail in every such case. But her pioneering legal advocacy unquestionably helped to move the law in the direction that she wanted.

'Heavy-Handed Judicial Intervention'

Ironically, given her record as a groundbreaking feminist lawyer, Ginsburg's bona fides would later be called into question in some feminist legal circles over her views on Roe v. Wade (1973), the famous Supreme Court decision recognizing a woman's constitutional right to have an abortion.

The trouble started with a 1985 North Carolina Law Review article titled "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade." In it, Ginsburg argued that while the Texas statute at issue in Roe (which banned all abortions except where the life of the mother was at stake) certainly deserved to be struck down, the Court had "ventured too far" when it "called into question the criminal abortion statutes of every state." This "heavy-handed judicial intervention was difficult to justify," she argued, "and appears to have provoked, not resolved, conflict."

Ginsburg also questioned the legal foundations of Roe itself. In his majority opinion, Justice Harry Blackmun had grounded the right to abortion in "personal privacy, somehow sheltered by due process," Ginsburg wrote. It would have been much better, she maintained, if the right had been rooted in "a constitutionally based sex-equality perspective."

Joanna Andreasson

Ginsburg doubled down on her critique eight years later in a widely discussed guest lecture at New York University School of Law. The Texas statute under review in Roe "intolerably shackled a woman's autonomy," Ginsburg noted. But "suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?"

For some feminist legal observers, that position sounded a little too much like the views expressed by Ginsburg's old colleague on the D.C. Circuit, Judge Robert Bork, who had denounced Roe as "the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century."

Of course, Bork also maintained that abortion rights deserved no constitutional protection whatsoever from the courts, while Ginsburg argued that they should be protected, but in a more limited way, and that the right should have been grounded in a different constitutional principle. Still, there is no denying that Ginsburg caused real disquiet in feminist quarters at the time by questioning Roe's reasoning while also insisting that the case actually gave the anti-abortion movement a boost.

Today's young feminists might not like the sound of that either. Which perhaps explains why so few of Ginsburg's current hagiographers tend to grapple with this particular aspect of her jurisprudence—if they even bother to mention it at all.

Contempt of Court

In June 2016, Justice Ginsburg sat down for a wide-ranging interview with The New York Times. Asked about the upcoming presidential election, the Notorious RBG let loose, declaring that she "can't imagine" Donald Trump, then the Republican nominee, winning the White House. "For the country, it could be four years. For the Court, it could be—I don't even want to contemplate that." She then joked about moving "to New Zealand" if Trump won. A few days later, speaking to CNN, Ginsburg denounced Trump as "a faker" who "has no consistency about him.…How has he gotten away with not turning over his tax returns?"

Ginsburg's fan base loudly cheered her on. The feminist site Bustle, for example, featured her anti-Trump remarks in a list of "13 Spicy Ruth Bader Ginsburg Quotes & Clapbacks That Really Bring the Heat." Serious legal observers, on the other hand, had a very different reaction. Was the Notorious RBG starting to believe her own hype?

It sure seemed like her celebrity status had gone to her head. Not only was it totally inappropriate for a sitting justice to sling mud at a major party's presidential candidate, but it would raise inevitable calls for Ginsburg's recusal if Trump won and his administration appeared before her in court. Also, it was just dumb politics—a fact that Trump was smart enough to recognize right off the bat. As he told the Times, getting attacked by Ginsburg "only energizes my base even more."

A much-chagrined Ginsburg eventually backed down. "On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," she said in a statement. "Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

Final Judgment

How will future generations remember Ruth Bader Ginsburg? "Ginsburg's legacy," observed the liberal legal pundit Kenneth Jost in 2013, "will depend in part on whether she makes the right decision about the best time to step aside."

It was a blunt analysis, motivated by naked partisan calculations, but Jost did have a point. If Ginsburg had retired while President Barack Obama was in office and the Democrats still controlled the Senate, thereby ensuring that a liberal-minded jurist would take her place on the bench, her status as a liberal icon would have been cemented. Indeed, she would have gone out as a sort of conquering hero of the left.

But of course Ginsburg did not step down at that time. As a result, there is now a very real chance that the 85-year-old justice might be forced to retire for health reasons with both the White House and the Senate in the hands of the GOP. Should that scenario unfold, Ginsburg's future legacy, even among the progressive left, is unclear. Will she be remembered as a legal trailblazer who helped to shape the course of constitutional law? Or will she be burned in effigy for "letting" Trump pick her replacement? Ginsburg's critics on the right, meanwhile, might just end up thanking her for sticking around for so long.

When it comes to the case of the Notorious RBG, the jury is still out.

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  1. I’m sorry, I’m and American and I can’t read more that 255 ASCII characters. The important question is this: was the movie good?

    1. Duh movie was reel good. The butter on the popcorn was very yellow and sticky.

      1. Dat wasn’t butter

    2. It’s like a porn movie. No one knows how it ends.

  2. No mention of what may be her most famous quote: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

    The best spin she could come up with the definition of “we” – you see, she was referring to society in general, not to a “we” that actually reflected her views.

    1. Margaret Sanger meets Dr
      Mengele

      1. In any case, one can imagine the reaction if some Republican or conservative talked about “populations that we don’t want to have too many of.”

        Sure, they’d accept that person’s explanation three years later that they didn’t really mean it like it sounded.

    2. Ugh, I just knew some conservative would pounce on that quote as if there’s a racial angle to it. Actually, there isn’t. RBG isn’t a racist. In fact she’s anti-racist as demonstrated by her consistent rulings in favor of affirmative action.

      1. She may have been thinking of class not race.

        1. (But ask any of RBG’s fans – they’ll tell you about how race and class are inextricably linked in this country)

        2. Well then the quote is even more innocent.

          FAKE SCANDAL

          1. OBL, RGB, would?

            1. Red green blue.

            2. RBG doesn’t do that. I hope not. Oh God, the visual is in my head.

              I threw up. Thanks, Chipper.

      2. Approving of affirmative action is in fact proof of her racism. The implicit assumption behind race-based affirmative action is that members of the disadvantaged race are simply incapable of making the grade on their own merits and that the advantages offered by racial preferences are necessary to overcome the inherent shortcomings of the beneficiaries. If that isn’t racist, nothing is.

        1. The Republican Party is racist, regardless of whether anyone or anything else is racist.

          1. And they will still be racist after all the deplorables have been dealt with?

          2. Rev. Arthur L. Kirkland|1.5.19 @ 6:12PM|#
            “The Republican Party is racist, regardless of whether anyone or anything else is racist.”
            Cite missing, asshole.
            And I’m sure the cite will remain missing asshole, since you have nothing other than your idiocy to support the claim.
            BTW, asshole, fuck off and die; make the world a better place.

            1. Don’t take Artie too seriously. All he can do is vomit invective at anyone at all to the right of center, without regard to truth or nuance. He is not worth the pixels his posts require for viewing.

          3. Drink Clorox.

      3. Affirmative action based on race is racist. At the very core of the notion of such affirmative action is that someone of a particular race meets some stereotype of that race and therefore needs special treatment – which of course is a racist view. Are Obama’s children really in need of, or deserve, preferential treatment over a white kid who is raised by a poor single mother and went to public schools in an area where public schools are horrible?

        That Ginsburg supports racism based affirmative action hardly makes a compelling argument for the claim that she is not a racist.

      4. Affirmative Action is the definition of racist. Moreover, It completely conforms with someone who view blacks as lesser forms of humanity that need government discrimination to achieve. Racism doesn’t require that you have Animus for those you percieve to be genetically inferior, just that you believe some races are genetically inferior.

      5. We could of course discuss whether being in favor of affirmative action is or is not racist, but that is probably best left for another time and place.

      6. Who cares if it’s racial or not? The fact that she thinks one group or another, regardless of what the dividing factor is, should be thinned out in favor of another or other groups is reprehensible.

    3. The generous interpretation would be that the populations she refers to are poor people with lousy parents, I think. Which, all else being equal, I think most people would agree with. But legal abortion (which I generally support) doesn’t seem to be a great means to accomplish that goal.

    4. Can’t wait for the old bat to kick the bucket.

      Should be sometime this year.

    5. This is an astonishing view; even ignoring the racist overtones, the idea that the SCOTUS has the authority to control the population by edict makes Hitler look entirely reasonable.

  3. tl;dr review: (Erin Brockovich x #MeToo) goes to the Supreme Court.

    1. And wins the culture war, reducing stale-thinking conservatives to muttering bitterly about all of this damned progress, reason, education, inclusivity, science, and modernity.

      1. You know who else sought to reduce undesirable populations and saw himself as a progressive?

        1. Woodrow Wilson?

        2. Hillary Clinton

      2. Drink Clorox.

  4. I’ve sometimes fantasized about changing verdicts. Stop excluding evidence and testimony that the judge doesn’t like or was acquired illegally (illegal means a crime was committed; prosecute it!). Require verdicts to list the chain of evidence that went into the decision, and to list all evidence that did not go into the verdict and why not. All evidence must be directly related to the crime and the law.

    And then appeals would be based entirely on whether evidence was ignored or improperly considered, especially if evidence related to the crime was not explored fully, or evidence considered was not directly related to the crime or the law.

    In particular, it disgusts me when learned judges say things like

    Ginsburg urged her colleagues to hear a new case that would give “the Court the opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

    The Constitution is extremely clear: Congress shall make no law.

    Of course, my fantasy would be as easily side-stepped as “make no law” is now.

    1. If we change our arcane legal system, how else are we going to get the trial outcomes we wish for?

      I have the same opinions about restrictions on evidence, etc. After serving on a jury, I had the chance after the trial to talk with the judge. I expressed my dismay, as a scientist, that the process would deliberately not consider any information that might have bearing on the case. He looked bemused.

    2. . . . excluding evidence and testimony that the judge doesn’t like or was acquired illegally (illegal means a crime was committed; prosecute it!).

      That’s a prosecutorial privilege, not a judicial one. The only remedy the judiciary has regarding illegally obtained evidence is to choose to discard that evidence. The judiciary can not initiate a prosecution nor can it force a prosecutor to do so.

      1. All prosecution should be by victims (or their guardians). The idea that only the state can decide which victims deserve redress is preposterous. And civil damages don’t cut it.

        1. Unless you think anarchotopia is a real possibility, I think there is a place for government prosecutors. A lot of people without the means or intelligence to mount a prosecution are victims of legit crime. I don’t have a big problem with a minimal government retaining that as one of its functions. The big problem is, of course, all the things that people get prosecuted for that shouldn’t be crimes.
          I do think that private prosecutions should be possible, at least.

          1. Yes there are ignorant people, low-IQ people, and others who can’t prosecute a case themselves. They should have guardians.

            Or IOW, anyone who doesn’t know how to hire a prosecutor, or who doesn’t even realize they have been victimized, should have a guardian.

            It’s not a question of money. Trials are expensive as hell nowadays because of governments — arcane rules and occupational licensing being the worst of it.

            Most prosecutions would be covered by insurance.

            Most cases would be handled cheaply and quickly by arbitration. Loser pays is a huge incentive to not prosecute or defend stupid cases. Government prosecution replaces that incentive with the incentive of gathering votes and publicity.

            1. Though this causes at least one off loophole that you could probably just murder homeless and friendless people.

              1. Government cops don’t put much effort into murdered homeless people right now, do they? Or do you really think dead homeless people get as much investigation as, say, JFK or J Paul Getty?

                Contrary to most statists, who sneer at the poor as being gullible and naive and in need of patronizing statist intervention, I have great faith in people looking out for each other, and that there would be plenty of charities investigating crimes against the poor. If nothing else, it’s better to support general crime fighting organizations to catch burglars and other criminals as soon as possible instead of waiting until you become a victim. Insurance companies would also recognize this.

                If lawyers know that rich people will have to pay loser’s costs, they will be jumping out of the woodwork to help poor people with a good case against rich people. In fact, loser pays probably switches the bias to make it easier for poor people to get away with some crimes, since their rich victims know they won’t get costs repaid.

                1. Say I’m working on a rocket, its half way done, will get us to Mars in 2 months. I ask the anarchist for some help, and he is like “Oh, I have a rocket that can get us there in 1.5 months!”

                  So I’m like, “Really? Awesome! Where is it?”

                  And the anarchist is like, “Oh, it is a completed design, but I haven’t started working on it yet.”

                  Then I’m like, “Well, wouldn’t it be smarter to finish mine so we can get to Mars sooner?”

                  Then the anarchist is like, “No, mine is better, and you’re a goddamned shitty engineer.”

                  1. And the statist is like, “Well, here is my plan, and yours is illegal, and I’m agonna throw you in jail and take your money to design my new plan, which will be better than my old plan, and we’re not even agonna look at your plan, because your plan is illegal and not even allowed.”

                    That’s you bud, because your plan is YOUR plan and you know so much better than everybody else that obviously you can’t allow any competition to embarrass you.

                    1. Are you emotionally fragile because you’re a utopian, or, are you a utopian because you’re emotionally fragile?

                      Interesting connection between the two

  5. Besides the fact that Hillary Clinton would never contemplate something as irresponsible as Drumpf’s Syria withdrawal, a major part of the reason I voted for her in 2016 was because I wanted more libertarian-friendly RBG-style justices. But as we all know, Russian hacking produced a Drumpf Presidency. And with it, dangerous right-wing extremists like Gorsuch and Kavanaugh.

    Of all the damage Orange Hitler has done to this country, his stacking of the Court might take the longest to reverse. With more Clinton nominees in the RBG mold we might have managed to overturn Heller fairly soon. But given the way the gun fetishist NRA controls the GOP you just know Gorsuch and Kavanaugh agree with that blatant example of judicial activism. The next Democratic President might have to expand the Court to 11 or 13 members so we can fix this deeply flawed reading of the Second Amendment.

    1. Libertarian ? Ruth “the cunt” Ginsburg? Are on fucking Acid? Taking private property from one person to give to another person is Libertarian in your view? JFC

      1. Hook, line, sinker.

        1. OBL is the best

      2. Come on, it’s a lame, obvious parody.

      3. You must be new here.

        1. Maybe he’s just the average socially awkward, ignorant, bigoted right-winger.

          1. Rev. Arthur L. Kirkland|1.5.19 @ 6:15PM|#
            “Maybe he’s just the average socially awkward, ignorant, bigoted right-winger.”
            Unlike the asshole rev who had been he a while, proving his assholerly with every post.
            Fuck off and die, asshole.

            1. Haha Seco I love your consistency 🙂 Thanks for speaking truth to power again and again for all of us who cannot be damned to post.

              1. I meant Sevo

              2. If there’s one thing that’s abundantly clear, it’s that Rev has no power in his own life.
                The overwhelming insecurity and dependence on his collectives (delusional) “success” is an obvious tell

                1. Is this how disaffected right-wingers perceive the liberal-libertarian mainstream in general and their educated, accomplished, betters in particular?

                  1. Case in point

                  2. Drink Clorox.

            2. :”Assholery.” Is that really a word? No matter, it is now. Thanks.

      4. OBL is either proof that Poe’s Law is absolute, or proof that it isn’t

    2. There’s nothing in your far-leftist rant that indicates that you have the slightest libertarian leanings. Your childish misspelling of Trump’s name, your DNC-inspired “orange’ characterizations indicate that you are a leftist stooge. Trump is a horrible president, but you have managed to neatly sidestep all of the legitimate criticisms of the man’s policies to parrot the DNC line.

      The idea that the next Democratic President can unilaterally increase the number of Justices is laughable.You do realize that if this were possible, Trump could do the same, and line up several far-right justices, don’t you?

    3. RBG mold? Is it as dangerous as black mold?

  6. “Ginsburg took the lead in developing a long-term legal strategy designed to unsettle and ultimately overturn those Supreme Court precedents that formally enshrined the inequality of women.

    One such precedent was Muller v. Oregon (1908), in which the Supreme Court had unanimously upheld a state law limiting female laundry employees to working no more than 10 hours a day. …In other words, Brandeis maintained, because women are responsible for giving birth to future generations, their bodies should be viewed as a sort of collective property in the eyes of the government.

    When the Court came within one vote of declaring the Patient Protection and Affordable Care Act unconstitutional in National Federation of Independent Business v. Sebelius (2012), Ginsburg denounced the “stunningly retrogressive” idea that Congress might lack the lawful power to force individuals to buy health insurance.”

    So RBG is not so much about freeing women’s bodies as enslaving men’s?

    1. This is why conservatives have lost the culture war and are relegated to muttering bitterly about all of this damned progress in America.

      Carry on, clingers. Inconsequentially, of course.

      1. Rev. Arthur L. Kirkland|1.5.19 @ 10:02AM|#
        “Carry on, clingers. Inconsequentially, of course.”

        Go empty the tank on your trailer, asshole. Leave the discussion to adults.

          1. You FOUND the asshole!

        1. Why so cranky, Sevo. Did someone finally figure a way to explain, in a manner you are able to comprehend, that your side lost the culture war and will spend the rest of your lives obeying others’ preferences like good little losers?

          1. Losing the culture war means the collective (pick any group) is the base of rights and the individual outside of the tribe (group) is nothing?

          2. Rev. Arthur L. Kirkland|1.5.19 @ 6:17PM|#
            “Why so cranky, Sevo.”

            Why such a fucking asshole, rev? (notice the question mark; trying to help your edumacation)
            Did someone evict you from the mobile home park? Did your commonlaw wife tell you to quit drinking that rot gut?
            Real question: Were you born a miserable fucking asshole, or did it take you many years of practice to achieve the level of assholery you now possess?
            BTW, fuck off and die, you pathetic excuse for humanity; the world will be a better place.

      2. Because Ginsburg has worked hard to slave men to the yoke of the state?

        That might be the first libertarian thing you’ve said since Volokh Conspiracy moved here and you started spraying your poop over here.

      3. “Carry on, clingers.”

        So sayeth the Reason Gecko.

  7. Would there be a market for totebags, coffee mugs, etc. for – say – Stephen Field or Janice Rogers Brown?

    1. Sure. “I am down with Brown” has a nice ring to it. Yellow Tony would rock such a totebag.

      1. I’m down on Brown!

        Aspirational.

  8. New lefty fantasy: If we can’t pack the court, how about congress?

    “Fixing what’s wrong with US: How about making Congress bigger?”
    […]
    “With the 2020 census approaching, a long-simmering debate about the size of Congress is heating up once more, with political experts and good-government types arguing that it’s way past time for a change.”
    https://www.sfchronicle.com/politics/
    article/Fixing-what-s-wrong-with-U-
    S-How-about-making-13479382.
    php?cmpid=gsa-sfgate-result

    What “long-simmering debate”? The one going on between that slaver’s ears?

    1. I actually do think that a little less than a million people per representative is a wonky ratio. Giving more granular representation seems reasonable to me. I’m also not so sold on it being a purely democratic gain.

      Looking randomly, NYC is 68% Democrat. That is dominant. But it also means it is 32% not Democrat. Which in NYC is about 2.8 million people. They are basically entirely denied dissent by being so dominated by the majority. A population equal to about half of Norway is denied.

      I don’t know if this is the means to that end of more granular representation, but I love discussion of that. I’m not particularly fond of any winner take all style of election, but I still wonder what can be done to improve it if we are stuck with it.

      1. Also, does anyone know if anyone has seriously suggested getting rid of Washington DC? I’ve been wondering a lot about that lately. There are traditional practical reasons for having a place people meet up in. But this seems increasingly unnecessary with modern technology.

        Why not spread representatives out. Make them largely abide in their home state. Make them harder to lobby, and also tie their wellbeing to their residence rather than the swamp.

        1. Make congress a big teleconference? I could get behind that.

          And just make DC part of Maryland. It’s ridiculous that a city with more population than many states is a weird federal jurisdiction without representation.

          1. A soft voice whispers over your shoulder – –
            “Virginia, Zeb, don’t forget Virginia”

            1. The Virginia areas of the District of Columbia are already ceded back to Virginia.

              1. Arlington really is indistinguishable from DC. As a NOVA resident, I’d prefer to give that and the rest of DC to MD

        2. “anyone has seriously suggested getting rid of Washington DC?”

          9/11

      2. “I actually do think that a little less than a million people per representative is a wonky ratio. Giving more granular representation seems reasonable to me”

        I oppose anything which increases the size of the government or makes it ‘more democratic’. Nothing good will come of either one.

        1. I honestly believe more Representatives would lead to less getting done due to gridlock. There is a fair fear of more congressman having more total time to crap out shitty bipartisan tripe. That being said, it might also lead to more power being taken away from unelected beureaucrats. Which, even with my hesitance towards Democracy, I hate more than our elected officials.

          All this is just a drabble though. Something I’ve been thinking about this week. I drove from Dallas to Denver and thus had ample time to wonder about random things.

          1. I think it would merely expand the number of House members that would need to be bought. Gotta prove thy are bring home the bacon to their district.

          2. “All this is just a drabble though. Something I’ve been thinking about this week. I drove from Dallas to Denver and thus had ample time to wonder about random things.”

            It is possible there is some convoluted process where an advantage (seen from a l’terian POV) might happen, but I’m afraid if one did, it would be an outlier, offering some hope where none really exists.
            So, if it cuts the number of people getting paid by the taxpayer, I’m for it. I oppose the opposite.
            Similarly, if the number of legislators elected by popular vote is increased, I’m agin it, and I support the opposite.

      3. I concur. Even an earnest congress-critter (if there is such a thing) can represent a district with 800,000 people. At least a quarter million are disenfranchised in 80 percent of the districts.

        It should be one for every 50,000 people, meaning we need about 7,500 or so representatives. Why 50k? It’s a nice round number and is the size of a medium sized suburb.

  9. Stop calling the cunt a Liberal ,she is a Leftists .Alan D of Harvard is a Liberal .The shriveled up cunt known as Ruth “the gash” Ginsburg is a fucking Leftists

    1. This post has all of the grammatical characteristics of a Trump tweet. majil is feeling presidential today.

  10. The people I’ve found to be too thoughtful for such labels as liberal or conservative are libertarian.

    1. Like Michael Bloomberg?

  11. ” It would have been much better, she maintained, if the right had been rooted in “a constitutionally based sex-equality perspective.””

    The fact that the ERA wasn’t ratified makes this kind of difficult, but I’m sure she’d have been up to it anyway.

  12. This article might have some valid criticisms of RBG, but the antisemitic dog whistles are completely unacceptable.

    1. I’m not a dog, so interpret the dog whistles for me.

    2. “antisemitic dog whistles”

      Which only you appear to hear.

  13. She is a statist and anti freedom. Looking forward to her departure and a replacement from Trump.

  14. Her recent rise to celebrity is interesting. I admittedly don’t know much about her career or her personality but she doesn’t strike me as being particularly charismatic or visible. Those aren’t traits I associate with *any* Supreme Court Justice. And yet I saw that my friends, who aren’t particularly political, had a Ginsburg doll in their 2 yr old daughter’s bedroom. I’m not surprised that some people would elevate those in government to celebrity status – that’s a pretty common phenomenon. I’m just surprised it’s her, and how out of the blue it seems.

    1. Well, she was buddies with Scalia, who was one of the more charismatic and colorful justices. So she must have some kind of personality. But I agree, based on her public persona, that it’s a bit odd that she has achieved that kind of celebrity.

    2. You could level many of the same criticisms about Bernie Sanders, but during the 2016 primaries women were wearing panties with his picture on them. Never underestimate the left-wing Cult of the State.

      1. At least Sanders has a public persona and a high profile in 2016. I find him to be an angry old commie weirdo, but apparently a lot of people do find him charismatic and persuasive, whether it makes any sense to me or not.

      2. They wanted their first time to be special.

        I eagerly await the Trump campaign “I want my first time to be special” TV ads.

  15. I always thought a fitting tribute to her would be a double feature: the RBG documentary followed by the movie “Little Pink House,” a dramatization of the Kelo decision, with Saint Ruth coming down on the side of the fascists.

  16. “They carry RBG tote bags, drink from RBG coffee mugs, and use smartphones housed in RBG cases. They wear RBG T-shirts, hats, jewelry, even Halloween costumes.”

    These are the same people who still sing along to Hamilton, right?

    Yuck.

    1. “These are the same people who still sing along to Hamilton, right?”

      It takes a very selective reading of Hamilton’s life to see him as a darling of the left. Pretty sure that most of them got their ‘information’ about him from the play.

  17. LOL RBG is a Marxist and the most politically motivated justice ever to occupy a seat on the SCOTUS. How much longer can this shrill old harpy live?

    1. In the overall scheme of things, not long! But another five years would seem like an eternity. LOL

      1. Still plenty of time for Trump to replace her.

  18. If any further proof were needed that the Inglorious RGB was a deranged priestess of the First Church of Universal Victimhood, look no further than her joinder in Sonia Sotomayor’s completely idiotic dissent in Schuette v. Coalition to Defend Affirmative Action BAMN.

  19. Today, after serving 25 years on the high bench, Ginsburg stands as the outspoken leader of its liberal wing.

    There is no such thing as “Liberals” that want to protect civil rights and freedoms.

    They are Socialists just like all the Socialists that are Lefties. They want to ban products and services, use government to force people to do things, erode civil liberties, ignore the Constitution, and destroy the USA anyway they can.

    Luckily, America is shifting away from Socialism. Trump is clear evidence of that.

    RBG will die at work because she is a stupid bitch that wont retire and didnt retire when Obama could have replaced her.

    Now Trump will get to replace her with a Constitution supporting justice.

  20. Ginsburg has been good on a lot of issues that conservatives are bad on, like separation of church and state, privacy, rights of defendants, police powers, gay rights, unreasonable searches…. and many more, and yes on free speech too, in contrast to what is said in the piece, she has voted for free speech for video games, flag burning, animal videos, nude dancing, for broadcast tv, the bong hits for jesus case, westboro baptist church, etc, etc…. She is almost always on the free speech side.

    There are many many things for libertarians to like about RBG, but this piece hardly mentions any.

    1. Your citations fell off.

      1. His did. Root has become a panderer to conservatives and Trump supporters.

    2. Maybe, but she is a disaster on property rights. Without property rights no other rights are possible.

    3. How is privacy a libertarian issue? One can’t have a monopoly on their reputation.

  21. Roe v Wade was decided by the Libertarian Party parlaying under 4000 votes into one electoral vote. The language was lifted from our platform and a week tacked on to make it look original. Even the Austin attorney, who later hosted my friend’s wedding, was named Libby. The 9th amendment and 14th both support the decision, and faith–the belief in the infallibility of superstition–keeps bound minds from grasping that women have rights. In Imperial China girls were brainwashed into binding their feet until they were horribly crippled. The fact that this mutilation of women is no longer practiced is the best proof that reason can and will prevail over the initiation of force in efforts to secure young minds for mutilation by brainwashing and conditioning to superstition.

  22. But does anyone actually care about what justice Ginsburg actually thinks or do they just like that she is a reliable champion of Team Blue? If for whatever reason she authored an opinion that contradicted Blue Team orthodoxy would anyone care to listen to why or would she simply be dropped down the memory hole without further ado? I don’t know anyone who cares enough about the supreme court to buy a mug with a justice’s face on it except as some kind of ironic shitposting but in real life meat space. I would hazard that few people in the so-called “cult of Ginsburg” could name all eight other justices.

  23. I’m still waiting for the old hag to move out of the country, along with Madonna and a whole host of other leftists who promised to do so. In lieu of that, hopefully cancer will silence her soon and she will be taking a nice long, well-deserved dirt nap!

    1. “I’m still waiting for the old hag to move out of the country, along with Madonna and a whole host of other leftists who promised to do so.”

      It’s amazing how many people cannot find their way to an airport as the PROMISED to do if Trump was elected. It’s almost like they are imbeciles who cannot read a map, or perhaps goddam liars.

    2. Madonna lives in Portugal now so there’s that

    3. If there is anything our country’s vestigial unaccomplished, disaffected right-wing males can’t abide, it’s a successful, educated, effective woman.

      Must make them feel inadequate. Which is a sound conclusion.

      1. It’s not the gender – it’s the politics. I would welcome another woman on the Supreme Court with even moderately conservative political views, such as Sandra Day O’Connor. The three women justices we currently have are all far-left. Of course, a confident, successful conservative woman no-doubt makes you feel inadequate, “Reverend”. Not me – I’m married to one.

        1. Republicans sometimes talk a good game, but the number of women sent into public office by Republicans — a photograph of elected Republicans usually resembles a fading picture of a 1950s corporate board, paunchy old white man after balding old white man — indicates that it’s nothing but convenient talk. Conservatism has become a relatively exclusive club for stale-thinking, downscale, rural white males.

      2. You heard it here, folks. Kirkland is inadequate in the face of accomplished, educated people.

    4. Doesn’t Madonna live in England most of the time?

      I’m sure she maintains residences in the US and still has her citizenship, but she does mostly live abroad.

      Of course, she did during the Obama admin too so “leaving the country” was really no big change.

  24. “…government officials should enjoy “broad latitude in determining what public needs justify the use of the takings power.”

    Ginsburg believes that the public ‘interest’, however government officials choose define it, is more important than the rights of the individual.

    1. RBG deserves to die an early death.

      1. No, she doesn’t, but a peaceful and happy retirement would be nice.

      2. Too late for that. Her quick, painful death would please me.

  25. “One such test case came to be known as Craig v. Boren (1976). At issue was an Oklahoma law that prohibited the sale of “near beer” (3.2 percent alcohol by volume) to males under the age of 21, while at the same time allowing women ages 18-20 to purchase the beverage.”

    Notice how the author of this article leaves us hanging in unresolved suspense. The law was ruled unconstitutional BUT what was the resolution? Can males under 21 in Oklahoma now buy beer? Or, are women ages 18-20 now prohibited from doing so until they reach the 21 year old requirement for men? GOOD GOD, MAN … how can this writer not relieve our suspense?

    1. If you’re under 21, unless you can make a fake ID, or have a friend buy you booze, you’ll have to stick with Red Bull and soda water.

      1. Courtesy of the DOT and all that sweet sweet federal money.

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  28. “Roe v. Wade (1973), the famous Supreme Court decision recognizing a woman’s constitutional right to have an abortion.”

    Not ‘recognizing’, ‘inventing’.

  29. The reality is Stevens and Souter were appointed by Republicans but as justices they were liberals and then retired under Obama. So really there should only be 2 liberal justices and not 4.

  30. She’s now officially missing oral arguments for the first time in her career, so freedom is burning a little brighter at the moment.

    Can she hang on for two more years? I kind of doubt it, but she is a tough little fucker.

  31. RBG has had bouts with cancer and two occasions, involving the colon and the pancreas [normally enough to kill you unless you are under constant medical surveillance and it is caught very very early on]; after her recent fall with rib fractures, her astute medical team noticed malignant nodes on her lung and a lobectomy was performed. This is in all;likelihood metastatic disease that has occurred from one of those primary sites; in all probability she will be dead in 6 months, a year tops.

    But not to worry, I am sure Trump will replace her with a woman…

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  33. “Will she be remembered as a legal trailblazer who helped to shape the course of constitutional law? Or will she be burned in effigy for “letting” Trump pick her replacement?”

    One consistent theme can be ascribed to Jurists elevated to the SCOTUS Bench:
    Inconsistency with prior positions.

    “Dedicated Conservatives” haven’t been.
    “Staunch Liberals” have proven far less staunch.

    I’ve no doubt the prevailing winds which put Gorsuch forward, would have liked to express a veto-option, given a few of his anti-government rulings.
    The jury is out on Kavanaugh, as he’s penned far too few opinions to see any consistency or lack thereof.

    Whoever replaces the Notorious RBG, will not be anyone’s sure-thing. See O’Connor, Sandra Day.

    1. Brett is a big-government conservative justice. I have zero expectations for him, other than to be not terrible on gun rights.

  34. “If Ginsburg had retired while President Barack Obama was in office and the Democrats still controlled the Senate, thereby ensuring that a liberal-minded jurist would take her place on the bench…”

    Given how Merrick Garland (who is probably to the right of RBG) was treated, this is a dubious counterfactual with Senator McConnell as Senate Majority Leader.

  35. It is extremely likely that Trump will have the opportunity to nominate a third Justice. The manner in which the first vacancy was filled can be blamed on partisan politics on the part of the Republicans. The second was a normal vacancy, which occurred in the normal course of events. When Ginsberg vacates, allowing a Republican president to fill her heat, the far left that she represents will have no one to blame but her, and her enormous ego, although Obama’s arrogance in assuming that the country would never replace him with a Republican was a contributing factor.

  36. Ginsburg believes that she is the best person to serve in the job she now has, despite her advanced age and declining abilities. In that, she is similar to Thurgood Marshall and other of her predecessors, some of whom apparently served beyond the age of competence.

    Appointments for life have a habit of corrupting the faculty of self-awareness, and Ginsburg is just the latest example.
    Ginsburg has never been a defender of individual rights, and always a champion of state power to define and take away individual rights. She has been a passionate advocate for limits on political speech and she has done her best to undermine the notion that the First Amendment means what it says where it states “Congress shall make no law.”

    So yes, she is a modern liberal, in all the worst senses of that word. And yes, she should be considered “notorious.”

    1. When she was younger she fought the power of governments and institutions to make rules that discriminated against women. So, she was for freedom when it helped her but now she leans the other way.

  37. How does Root overlook one of Ginsburg’s most egregious statements, when in South Africa, in which she stated that she would not present the United States Constitution as a model for emerging nations to follow. Presumably this is because our Constitution does not enshrine “positive liberties”. But whatever her reasons, this is a remarkable view coming from one sworn to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear true faith and allegiance to the same; [to] take this obligation freely, without any mental reservation or purpose of evasion; and [to] well and faithfully discharge the duties of the office on which I am about to enter.” Either she did not take that oath seriously when sworn in, or she had a major change of heart once on the bench. Whichever it is she should be disqualified on that basis alone from continuing to serve.

  38. RBG is a leftist and a progressive. She is most definitely not a liberal.

  39. She really needs to go. She hasn’t written an opinion herself for over 6 years. That’s why Obama wanted her to retire. No, she wanted to wait for Hillary who would certainly nominate a feminist. Surprise!!!

    With cancer you’d think 3rd time would be the charm. Time to sit on the porch and relax. But no, as always her ego drives the bus while the real issue is What does she actually contribute to the Court and the Country?

    We don’t nominate and confirm people to serve on the court as placeholders for political parties. She needs to go. Same with Breyer. He’s worn out too.

  40. All this celebrating of RBG reminds me of that the left lavished on former CA Supreme Ct. Justice Rose Bird, as mediocre a judge as ever was, as the voters confirmed when they removed her from office for her consistent and deceptive hostility to every death penalty case that ever came before her. RBG’s got the smarts that Bird lacked, but she uses them to all the wrong ends. Like so many of those who adore her, she may well be intelligent enough, but is hardly wise.

  41. Looks like “RGB” is circling the tidy bowel. Trump gets another pick? Time to swing the court back to the constitution. Hopefully.

  42. Antonin Scalia “stepped down” when Obama was President. Ginsburg would have been yet another power clash between the fascist right and the fascist left.

    We NEED a Constitutional Amendment restoring a 2/3 majority to confirm any judge to a lifetime appointment. We require 2/3 to change the Supreme Law of the Land … all treaties and both methods to amend the Constitution. But not 2/3 to interpret the Supreme Law of the Land. Dumb.

    Left – Right = Zero

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