RBG would not approve

Radical liberal activists are organizing protests outside the homes of U.S. Supreme Court justices reported to have tentatively signed on to Justice Samuel Alito’s draft majority opinion overturning Roe v. Wade. Some march under the banner “Ruth Sent Us,” claiming the patronage of the late pro-abortion Justice Ruth Bader Ginsburg. This is a shameful attempt to twist her legacy. Justice Ginsburg would never have approved of this blatant harassment of her colleagues.

I have no intention to valorize Justice Ginsburg for her jurisprudence. She was a liberal icon and was wrong about many things, beginning with how to understand the Constitution. She was a feminist advocate and a staunch defender of abortion rights. But this episode illustrates the absolutist extremism of the woke left when even their own heroine would reject their antics.

First, Justice Ginsburg resisted left-wing efforts to undermine the Supreme Court. Near the end of her life, she spoke out forcefully against efforts to pack the court, saying in an NPR interview, “Nine seems to be a good number.” She recognized the effort to expand the number of justices for what it was: a nakedly political effort to bully the current justices into curtailing their jurisprudence when it bumps up against liberal principles. “If anything would make the court look partisan,” she warned, “it would be that.”

Second, Justice Ginsburg took seriously the importance of collegiality on a divided court. The day-to-day functioning of the Supreme Court rests on two pillars: confidentiality and collegiality. The unprecedented leak of a draft opinion has destroyed the first. The disgraceful effort to target the Alito majority by protesting outside their private homes undermines the second.

The friendship of Justice Ginsburg and the late conservative Justice Antonin Scalia provides a far better model and proves her commitment to collegiality. The two disagreed vigorously on a host of issues, including abortion. Yet they respected each other tremendously. First serving together on the U.S. Court of Appeals for the District of Columbia Circuit before reuniting years later on the U.S. Supreme Court, the two shared a love of the law, travel, good food, and opera. The pair traveled abroad together with their spouses, including a memorable judicial-exchange trip to India, and appeared on stage as extras for the Washington National Opera. There is even a comic opera dedicated to their relationship, a back-and-forth of lines from their opinions delivered with grace and good humor from one to the other, stressing their shared love of country and Constitution before any individual difference over interpretation and application (“We are different, we are one”).

In her foreword to the book Scalia Speaks, recalling her former colleague with great fondness, Ginsburg wrote, “If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed.”

Of course, Scalia’s views on overturning Roe v. Wade were well-known. He never hid his disgust for what he regarded as Exhibit A of judicial activism. Yet Ginsburg never let the conflict between his views and hers on that matter stand in the way of their friendship or mutual respect.

Finally, Ginsburg herself had real issues with the reasoning of Roe and dared to say so out loud. Indeed, she was almost passed over for the court in 1993 because many women’s groups were concerned about a New York University lecture she had given leveling a critique at Roe. In her talk, Ginsburg had forthrightly acknowledged the intellectual errors and weaknesses of the Roe ruling before trying to put it on a different, more defensible foundation. In other words, though she was solidly pro-abortion, she made some of the same arguments Justice Alito is making about the unworkability and flawed premises of Roe.

Viewed together, these various examples show Ginsburg’s commitment to the court over disagreements in any individual case. She once summed up her friendship with Scalia by quoting him: “I attack ideas. I don’t attack people. Some very good people have some very bad ideas.”

Justice Ginsburg would not be pleased that her disciples are attacking her former colleagues now by drawing their families into this media circus. It is unconscionable.