Several months ago, it was "RBG," a documentary heaping praise on progressive icon Supreme Court Justice Ruth Bader Ginsburg. Now in the past week we have seen released a new Hollywood bio-pic, “On the Basis of Sex,” with actors playing the Notorious RBG, her family, and other characters. The reviews overall are pretty bad, but there's no question that the idea of the film is to heap praise and make an enduring heroine out of the great justice who stands up to Republican appointees like Brett Kavanaugh. Here is a roundup of reviews from the left-wing British newspaper The Independent. Example:
The Hollywood Reporter . . .: "The dramatic approach here is clear, efficient and entirely on-the-nose, with little time for anything that might distract from the hagiographic effort in play. Its sole purpose is to ennoble and proclaim a hero, which its subject almost certainly is. But it makes for notably simplified drama."
So is RBG a heroine worthy of great praise and adulation? If you want my opinion, she's about the worst possible Supreme Court Justice you could ever get. Why? Because she has no appreciation of our constitutional order, and of why it makes for a successful country. Her opinions appear to me to have no overriding rationale other than I'm for whatever our progressive team is for, and I'm against whatever our progressive team is against, and I'll find some basis in the Constitution to make that work. She is a 100% reliable vote for the liberal bloc (and the official New York Times/Washington Post position) in any case of political significance. If the progressive team at the moment is of the view that the federal or state governments are oppressing minorities like blacks, gays, transgender people, or other such, then I will use my power to strike down any such actions; but in the realm of economic policy, I'm totally in favor of unlimited government power, unrestrained by constitutional limitations, to seek to create perfect social justice and fairness by ordering the people what to do.
How is it that the same government that systematically oppresses minorities, and needs constantly to be reined in for its transgressions in that arena, should nevertheless be entitled to total fiat to reorder the economic and political system to try to achieve perfect fairness and justice? In reading many of RBG's opinions for this post, I can't find her ever addressing that tension, or even pondering that there may be any inconsistency in her views as to government authority. Maybe some reader can point me to an instance.
Consider a few examples in the realm of government regulation of the economy. NFIB v. Sebelius was the famous Obamacare case, that reached the Supreme Court in 2012. You will probably recall that the big issue as to the constitutionality of Obamacare was whether the federal government had the power to order people to purchase a product -- health insurance -- from a private company. There had never been an instance of such a thing by the government in the previous 223 years of the republic. You probably also recall that Chief Justice John Roberts rescued the statute by voting with the liberal bloc on the ground that the statute was not really a naked order to the people to purchase a product, but rather was merely a tax (i.e., if you don't buy health insurance you will be hit with a penalty on your tax bill), and therefore fit into previously-upheld structures. What you may not recall is RBG's concurring opinion, in which she roundly denounced the whole idea that the government should be constrained in any way in its regulation of economic activity:
The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. . . . Beyond question, Congress could have adopted a similar scheme [to Social Security] for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive. Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm. See United States v. Darby, 312 U. S. 100, 115 (1941) (. . . recognizing that “regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause”). . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.
Then there is Citizens United v. FEC. That's the 2010 case where the Supreme Court struck down an attempt by the FEC, under a provision of federal campaign finance law, to prevent the showing in the 30 days before a primary election of a film attacking Hillary Clinton, where the film had been financed by a corporate entity independent of any campaign. RBG did not write any of the opinions in Citizens United, but joined the dissent of Justice Stevens; however, she has been outspoken on the subject of the case in public utterances. From Justice Stevens's dissent:
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. . . . The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case. . . . The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.
Although she didn't write that opinion, RBG has been outspoken on numerous occasions in calling Citizens United the worst decision during her time on the Supreme Court, and calling for its reversal. As one example, there is this piece reporting on a speech she gave at Georgetown in 2015:
If Ruth Bader Ginsburg could overturn any of the decisions made by America’s highest court in the past 10 years, it would be the sweeping 2010 decision that expanded corporate personhood. While answering questions at Georgetown University Law Center in Washington, the supreme court justice said that if she had to pick one case to undo, it would be the Citizens United decision. “I think our system is being polluted by money,” Ginsburg said.
Like the entirety of the progressive press that takes the same position, RBG seems completely unaware that essentially every media outlet is organized as a corporation, and could be completely stripped of its First Amendment rights under the rule they are advocating.
Over on the side of civil rights and liberties, I could have more sympathy for Justice Ginsburg's point of view if she consistently upheld civil rights. But unfortunately her position seems to be that there are favored rights and disfavored rights. And I find it remarkable that she never finds a single case of political significance where she can find any nuance, let alone merit in the other side's position. Those taking the position opposing progressive orthodoxy of the moment are just stupid at best, if not evil. In any case involving an environmentalist group, she will always side with that group. In any case involving restrictions on abortion, she will always oppose the restrictions.
From a dissent in Veasey v. Perry, a 2014 case challenging a Texas voter ID law (which the Court upheld 6-3:
The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.
From another dissent, this one in Gonzales v. Carhart, the 2007 case where the Supreme Court upheld federal restrictions on "partial birth" abortion by a 5-4 vote:
The notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational . . .
So, go ahead and try to make a heroine out of her if you want. The problem is, somebody is probably going to read her opinions.