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What is wrong with Supreme Court Justice Ginsburg’s attitude toward the rule of law and the US Constitution?

Justice Ruth Bader Ginsburg explained in a recent speech that she can’t understand why people object to the application of foreign law by US Supreme Court Justices in their decision making. She expressed displeasure that the Canadian Supreme Court gets more international press and respect than the US Supreme Court.

What this reveals is that certain justices are not satisfied with being the umpire. They have no respect for the “rule book” (our US Constitution.) They not only want to umpire the game, they have an elitist attitude enabling them in their mind to disregard and write the rules. They believe their personal interest in becoming a “world leader” supersedes the rule of law which has made America the envy of the world. As a result they throw out the rule of law. They have forsaken the “enlightened” approach of constitutional law and have returned us to the dark ages’ concept “that he who is king is in charge”. No longer do we have an equal playing field. Rather we have a court that is both umpire and rule maker. Our Republic and separation of power is gone.

All just powers, Thomas Jefferson wrote in the Declaration of Independence, derive from the consent of the governed. Governments are republican, he later said, "in proportion as they embody the will of the people and execute it."

However, today the US Supreme Court, not the majority, not the legislature, and not the President govern. President Obama can sign legislation but the legislation is beholden to a Supreme Court with attitudes like Ginsburg. The Supreme Court has the final say on criminal justice, education, voting, employment and promotion, taxation, immigration and deportation. The court may invent a “constitutional right” and decide the majority’s plan violates it. We could easily revise Lincoln’s words to say that today we have a government of the judiciary, by the judiciary, and for the judiciary.

Justice Ruth Bader Ginsburg, in July 1993, prior to her confirmation hearings, wrote to the Senate Judiciary Committee that federal judges find these "chores" to be "uncongenial and unwelcome." Had "state and federal legislatures" done a better job, the courts would not have been forced to take over the schools, prisons, and mental hospitals. The people through the legislature and the president, according to Justice Ginsburg's theory of democracy, get first shot at solving problems to the satisfaction of federal judges ----but not the last word.

Where does this all lead?

If law is not bound by the US Constitution, there is no rule of the law. The law will be whatever the powerful need to pursue their agenda at the expense of those without power. If there is no rule of law we will be ruled by the passions of the factions. This is the instability of the “banana republic” and not the stability that American has known for years.

June 3, 2009
Wexford Bob
Director of Education & Advocacy
PA Coalition for Responsible Government

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