Justice and Justices

As the United States Senate begins its deliberations on the nomination of a new Supreme Court Justice, it’s worth reflecting on what “justice” appears to mean to the members of the Supreme Court.

It has long been clear that the Court no longer considers itself to be a neutral arbiter of individual legal disputes. Instead, it has constituted itself as a board of Platonic Guardians who undemocratically settle significant policy disputes under the guise of interpreting the Constitution. To see this, all you have to do is read the Court’s decisions on “social issues”.

In its infamous Planned Parenthood v. Casey decision, the Court was so determined to uphold the “right” to destroy unborn children that it gave Constitutional significance to the amorphous notion that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It also had the gall to demand that pro-lifers stop advocating for the protection of unborn human beings, saying that all should fall into line when the Court “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

This role of the Supreme Court is far from the vision of the Founders of our nation, but it is well-settled now. In such an atmosphere, it is clear that the policy preferences of prospective Supreme Court Justices becomes an appropriate area for inquiry and discussion. If they are going to act as our unelected life-time rulers, perhaps we should get to know them better.

Usually, Supreme Court Justices try to maintain the pretense that they are merely judges, and that their personal policy preferences are not a factor in decision-making. However, occasionally they get comfortable enough to let their guard down and the truth that they usually conceal manages to slip out.

So, we have Associate Justice of the United States Supreme Court Ruth Bader Ginsburg, in an interview with the New York Times, offering the most appalling ideas about abortion. We find no sense of reserve in her discussion of the merits of issues, and even see her telegraph to future litigants what she would consider the best legal argument to sustain Roe v. Wade:

Q: Do you see, as part of a future feminist legal wish list, repositioning Roe so that the right to abortion is rooted in the constitutional promise of sex equality?

JUSTICE GINSBURG: Oh, yes. I think it will be.

We also see her gladly commenting on abortion in a way that focused entirely on the mother, and completely ignoring the interests of the unborn child. Here’s a taste:

Q: When you say that reproductive rights need to be straightened out, what do you mean?

JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

And even worse, we find Justice Ginsburg commenting with unusual frankness on how she was surprised that the Court had upheld limits on Medicaid funding for abortions for poor women:

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.

An amazing statement — one wonders what parts of the population Justice Ginsburg would consider to be among those “we don’t want to have to many of”?

Now, in fairness, there are some who suggest that in making these last comments Justice Ginsburg was not endorsing the eugenicist view. But it’s clear that she supported Roe at a time when she understood its purpose to be population control, so doesn’t that mean that she either supported or at least accepted (and certainly never protested) that purpose as well?

Not that it matters much. The entire interview — and her judicial opinions — reveal an appallingly callous and inhumane indifference to unborn human beings. Her acquiescence in eugenics would be just another reason to find her legal and policy positions to be morally repellent.

All of this is a prelude to some important questions that we all need to ask. Is this the way that we should be ruled — by people of the like of Justice Ginsburg? Does anyone still think that elections don’t matter?

If anyone isn’t sure about the significance of these questions, just look at Capitol Hill today, where the latest of our Platonic Guardian is being selected to rule us.

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