The Roe v. Wade ‘Aberration’ and America’s Civic Crisis

Judge Douglas Ginsburg has a passion for civics education. When the Journal offered to interview him three months ago, the topic seemed important but dull. By the time we met in his room in Washington on May 13, things were already starting to work out. A few days earlier, a few miles away in Virginia, protesters had gathered outside the home of Justice Samuel Alito, the author of a leaked draft that would overturn. Roe v. Wade, The 1973 decision showed the constitutional right to abortion. Also hadRoe scavengers at the residence of Chief Justice John Roberts and other conservative colleagues.

Judge Ginsburg, who will turn 76 next week, is a senior judge on the United States Court of Appeals for the District of Columbia. He still hears the cases in an interview and is also cautious at first about discussing current events. But I try to convince him to express his opinion frankly: “Roe clearly an aberration. “Inverting it “technically corrects for aberrations,” he adds, “but it implies more than that, because it also calls into question staring assertiveness,” the theory says. about precedent.

He didn’t say how he would tackle the staring decision question and he said he hadn’t read Alito’s leaked comments in Dobbs sues Jackson Women’s Health Organization. But he knows the gist of it well enough to cite harsh criticism of it as an example of civic and constitutional ignorance. “So many people think that the Supreme Court is something of the legislature,” he said. “They have no real concept of how a case is brought to court, how it is determined and what the powers of the court are.”

People think the courts are about to ban abortion, when the reality is overturned Roe “Has the effect of bringing that question back to the states, where it was before, in 1973.” Not all states will return to the restrictions of half a century ago: “New York will not abolish abortion. Completely opposite. They are thinking about giving money to people coming from a state that is more strict about abortion. ”

Judge Ginsburg said that Americans of all political backgrounds are poorly informed on constitutional issues: “22% of adults cannot name a single branch of government.” Schools no longer impart “an education that includes the bare minimum a citizen should know about how our government works, why it is structured the way it is, and their rights and obligations.” what.”

Last year, he launched an online course called Civics Fundamentals in partnership with, an educational nonprofit. He wants to take the US Citizenship Test, administered for immigrant naturalization, a high school graduation requirement. The test consisted of 100 questions and he made 2 and a half minute explanatory videos for each of them as teaching aids, some of which we watched together on the computer in the text. his room.

Judge Ginsburg acknowledged that most Americans “probably know they have freedom of speech, and maybe freedom of religion and Second Amendment gun rights,” though he said they might. learn all that from television, not in school. And few people understand federalism, “the whole difference between local, state, and federal government,” as the fundamental structural question being addressed in Roe and Dobbs.

He said, quoting Alexander Hamilton. Judge Ginsburg offered a quick civics lesson, explaining that judicial decisions are not “self-enforcing” but dependent on the executive branch. Presidents almost always respect the judicial power. A rare exception occurred in 1832, when Andrew Jackson is said to have said of the chief justice: “John Marshall has made his decision, now let him execute it.” Judge Ginsburg likened Jackson’s comment to a similar quote, attributed to Stalin: “How many divisions does the Pope have?”

A lack of understanding of basic civics, he said, “leads citizens to disinformation by the mass media and politicians.” The latter are “well informed and know that the courts must not respond to pressure from protesters in front of their buildings or at their homes. But they still encourage this misunderstanding of the public to which they are supposed to react. ”

He allows that “I don’t know of any politician who says you should go to the judge’s house. . . . But standing on the steps of the Supreme Court and speaking at a rally? It was not inherently uncivilized, but in fact it was done in a threatening manner by some members of Congress.”

Who is he thinking of? “I won’t name them,” he insisted. But on March 4, 2020, Senator Chuck Schumer, now the majority leader, stood on the sidewalk outside the Supreme Court and declared: “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You unleashed the vortex and you will pay the price. You don’t know what will happen if you continue with these bad decisions.” Schumer apologized after being publicly criticized by Chief Justice Roberts. (Mr. Schumer was referring to an abortion case in Louisiana, Health Services June sues Russo, that the court has just heard. The final decision went his way, with the chief judge concurring with the four liberal judges on the outcome but refusing to participate in their comments.)

Targeting judges at their home is an escalation, which Judge Ginsburg described as “unprecedented” and “unthinkable, even in recent years”. This development is “regrettable in many respects, not only for the privacy and security of judges, which must be more closely protected today,” but also because it encourages misunderstandings about role of judges. They can’t solve cases by “raising your finger in the air to see which way the wind blows, let alone get wind to the house and blow”.

In 1974-75, Mr. Ginsburg served as secretary to Justice Thurgood Marshall, who as a NAACP attorney successfully argued Brown sues Board of Education (1954), in which the Warren courts agreed that black children had the right to attend segregated schools. At least at first, that decision was opposed to Roe considered the most controversial of the 20th century. Judge Ginsburg noted: “The South is littered with billboards that say ‘Ignore Earl Warren’. But no one thought – or dared – to enter the judge’s house.

Not that the South is a stupid place of politeness. Most of Marshall’s work as an attorney involved representing criminal defendants. Each time he did, Judge Ginsburg said, “he took his life in his own hands. He was nearly dead once before the police showed up. ”

Marshall is “a very interesting character,” added Judge Ginsburg. “He is basically a conservative. He believes in American laws and institutions.” He was “contempted, first, for the communists, then for the returnees in Africa, then for the street marching. . . civil rights protesters. ” Judge Ginsburg corrects himself and says Marshall is contemptuous leaders of civil rights marches: “Marshall said, ‘Go to the courthouse. That’s the way to get the job done. ‘ ‘A portrait of Marshall hangs in Judge Ginsburg’s office, sketched by ‘a local African-American artist who has never met him’.

The judge described his own legal philosophy as “a textist, an originalist, and very conscious of not deciding on matters that don’t need to be decided.” It’s easy to see why Roe v. Wade annoyed with him. “It is a myth that judges decide something unnecessary to settle a case and put their point of view on record. So I try to narrow the focus of my decisions and those of my colleagues, if someone I think is venturing into a territory we don’t need to explore. “

Judge Ginsburg cited a “wonderful” book by his friend Mary Ann Glendon, a Harvard legal scholar. “Abortion and Divorce in Western Law” is a study of 20 Western countries that have simultaneously changed their abortion laws — to law everywhere, except in the United States. Judge Ginsburg said. “It’s set up so nothing can happen unless people compromise.”

According to him, it is the “genius” of representative democracy: “We are all disappointed in some aspects and pleased in others, and we accept that as authoritative.” as it is achieved through a democratic process.” When the process is “arrogant to an unofficial authority,” the process has no legitimacy. “In court decisions, you often don’t reach a compromise, you get dissent. While in the legislature, you get compromises and as a result — or nothing happens. ”

In Roe in particular, he says it’s better to “follow the tracks of Ruth [Bader] Ginsburg” (not related), was his colleague on the DC Circuit until she joined the Supreme Court in 1993. In a 1992 lecture, she argued, in her acting. in his resolution, that “a narrower determination concerning Texas law” is referred to in Roe, “Which is very extreme between states, which would be quite enough to provoke discussion and legislative processes in the states.” The process “is already underway. There is much activity under the influence of the women’s movement in the state legislatures. Some states have changed their laws. Others are considering doing so and some have decided not to do so. “The Supreme Court “simply cut short” that process.

Judge Ginsburg said: “Ruth was correct. “Be sure to mention Ruth in this.” (Once in court, Justice Ginsburg was a consistent supporter of Roe—And its 1992 successor, Planned Parenthood v. Casey—whatever she is apprehensive about its conception.)

Nearly 35 years ago, Douglas Ginsburg came close to a Supreme Court nomination. After the Senate rejected Robert Bork (another DC Circuit colleague) in 1987, President Reagan announced his intention to name Judge Ginsburg, then 41, for the chair. But NPR’s Nina Totenberg reported that he smoked marijuana as a college student and a young professor at Harvard. Such revelations quickly became common as baby boomers rose to positions of power. But nine days after Reagan’s announcement and before his formal nomination, Judge Ginsburg withdrew from consideration.

He declined to discuss the episode, saying with a chuckle: “There’s not much there, so there’s very little to say. It’s been nine days. Nor will he be drawn into a discussion of how his legislation will differ from that of eventual appointee, Justice Anthony Kennedy. “There wasn’t a single major case that Justice Kennedy wrote or covered for, for which I sat down and read the summaries. So I really wouldn’t risk giving an opinion as to whether he’s doing things differently than I would. ”

Thirty years ago, the last time the high court considered overturning Roe v. Wade, Justice Kennedy joins a 5-4 majority in Casey let it stand. History and contemporary civic life might look very different with Justice Ginsburg in 1992.

Mr. Varadarajan, a Journal contributor, is a fellow of the American Enterprise Institute and at the Classical Liberal Institute of New York University Law School.

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