By DONALD DeMARCO
What are the immediate responsibilities of a Supreme Court justice? And what restrictions come into play so that these responsibilities are not compromised? The late Supreme Court Justice Antonin Scalia has offered what seems to be a sound guideline: “The Constitution that I interpret and apply is not living, but dead, or as I prefer to call it, enduring. It means, today, not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
A Supreme Court justice should “interpret” and not “reinvent” the Constitution and rule without fear or favor.
Justice Ruth Bader Ginsburg, given her left-leaning propensities, has become a cult hero. She is the subject of four biographies, five children’s books, a coloring book, yoga mats, an action figure, a throw pillow, and a robe-decked figurine. Her biopic, On the Basis of Sex, is a full Hollywood production. Her 2008 documentary, RBG, has been shown on television. She now rides under the banner, “No Truth without Ruth.” And then, there is her presence on TV comedy shows. One critic has referred to her recent iconic stature as “a traveling circus of Ginsburg-mania.”
Part of the explanation of Ginsburg’s excessive adulation, something unprecedented for a Supreme Court figure, is a reaction against her political antithesis, President Trump. Another part of the explanation relates to an excessively left-leaning media. It is unlikely that anything like this media attention would be given to another Supreme Court justice, Clarence Thomas, although it might be more richly deserved.
Clarence Thomas is the second African American to be named to the Supreme Court. His biography warrants attention. He was born in a small town just outside of Savannah, Ga., in 1948. His father abandoned him, his two siblings, and his mother two years later. Clarence spoke Gullah, a Creole dialect, and lived in a shack with dirt floors and no plumbing. When a fire left his family homeless, he was sent to live with his maternal grandmother.
At the age of sixteen, Clarence became the first black student to be admitted to St. John Vianney Seminary where he began pursuing his dream to become a Catholic priest. He eventually graduated from Holy Cross College and gained admission to three Ivy League law schools. One social commentator has stated that “Thomas is unlikely to be declared a ‘hero’ by CNN because the network simply does not agree with his judicial philosophy.”
It is not surprising that Thomas and Ginsburg do not see eye-to-eye.
A legal issue, “Sex Selective and Disability Abortion Ban,” recently (May 2019) came before the Supreme Court (Box v. Planned Parenthood of Indiana and Kentucky, Inc.). The ban would have made it illegal for abortion providers to perform abortions in Indiana in cases where they knew “that the mother is seeking the abortion because of the race, sex, diagnosis of Down syndrome, disability, or related characteristics.”
Ginsburg took umbrage at Thomas’ use of the word “mother,” referring to the woman who was contemplating her abortion. Ginsburg strongly disputed Thomas’ use of that word. “A woman who exercises her constitutionally protected right to terminate a pregnancy,” she wrote, “is not a ‘mother’.”
To cite Scalia once again: “Words have meaning. And their meaning doesn’t change.” Can a person who refuses to honor the accepted meaning of the word “mother” be trusted to honor the accepted meaning of the words in the Constitution?
In a companion cause, the Supreme Court upheld an Indiana abortion law that requires aborted fetuses to be disposed of in the same way as human remains. Indiana officials had declared that a fetus should be given a “dignified and respectful” burial or cremation. Ginsburg was the lone dissenter. She stated how “the cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden [on the woman].”
The phrase “undue burden” has become a judicial cliché. Nonetheless, it combines a phrase that is excessively vague with a force that is excessively powerful. If the requirement to give the aborted fetus a dignified and respectful burial places an “undue burden,” on the woman, we can argue that life itself imposes an “undue burden” on everyone.
Ginsburg’s commitment to abortion appears to go far beyond anything that is remotely suggested by the Constitution. Justice Ginsburg has earned the flattering appellation of being “Notorious.” Others, even within the court, find some of her views to be outrageous.
In the course of relating her surprise at the court’s 1980 decision to uphold the Hyde Amendment, which bans federal money to support abortion, Ginsburg, in a New York Times Magazine interview, made a curious statement: “Frankly, I had thought that at the time Roe was decided in [1973], there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding of abortion.”
George Weigel, Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, was struck by the words, “populations that we don’t want to have too many of.”
Ginsburg’s parents were Jewish, her father an emigrant from Odessa, Ukraine, and her mother was born to Austrian Jewish parents. Weigel asks, “But where is the outrage at this blatant defense of legally sponsored and federally funded eugenics? And especially among African-Americans? Where is the new Frederick Douglass when his people — and the rest of us — need him?”
Supreme Court justices should speak, but mostly through their judicial opinions and not through TV comedy shows. They should be safeguarded from the pomp and circumstance that raises them to the level of a cult figure. There should be sufficient respect for the Constitution so that justices are not tempted to wander off and parrot the ideological rhetoric that happens to be in vogue.
The welfare of the country is at stake.
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(Dr. Donald DeMarco is professor emeritus of St. Jerome’s University and adjunct professor at Holy Apostles College. He is a regular columnist for St. Austin Review. His latest two books, How to Navigate through Life and Apostles of the Culture of Life, are posted on Amazon.com.)
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