Ruth Bader Ginsburg

Romney Data Scientist: Americans View Marriage, Abortion Differently


United States Supreme Court Justice Ruth Bader Ginsburg, who may or may not have been separated at birth from Dana Carvey’s “Church Lady” character from Saturday Night Live, may have signaled how she’ll decide Hollingsworth v. Perry (covered here by Travis) when she recently characterized the Court’s ruling in Roe v. Wade as somewhat reactionary and hurried.

Americans would be broadly disappointed, argues former Romney 2012 chief data scientist and Target Point Consulting vice president and research director Alex Lundry, if the Court bases its Hollingsworth ruling on Ginsburg’s feelings about the Roe decision. It’s not that Lundry believes the Court shouldn’t be insulated from popular opinion. But when you set aside the substantive and legal differences between the two cases and the policy issues which they embody respectively, Americans fundamentally view gay marriage and abortion in different ways.

He writes in The Daily Caller, looking at opinion polling and demographic data from a number of sources:

A clear majority of the country favors providing same-sex couples with the ability to marry, while opinion on abortion has remained closely divided for almost 40 years. A March poll by ABC News and the Washington Post found that 58% of Americans support gay and lesbian Americans’ legal right to wed — a record high. That majority will likely grow into a broad-based consensus in the not-too-distant future, as polls reveal that more than four out of five voters under 30 support legalizing same-sex marriage.

The Dangerous Philosophy of a Living Constitution

My more liberal friends often talk to me about the “living Constitution”, one that changes with the shifting moods of the electorate. They do so as if this was a good thing, something that should be lauded and encouraged. They also agree with the leftist elements of the judiciary who think we should show more deference to foreign law, and incorporate that into our own deliberations and rulings, in the process making us a more inclusive part of the global community. On the contrary, the strength of our nation lies in the fact that we are a nation of the rule of law, not the rule of man. It is the very foundation of our national structure. The concept of the highest law in our land being fluid depending on the temporary mood of the people is the equivalent of building a house on a shifting foundation. Inevitably that house will come crashing down.

Last year, Supreme Court Justice Ruth Bader Ginsberg said in a speech that “Judges in the United States, after all, are free to consult all manner of commentary — Restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs. If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”

Indeed, the court has referenced external law in numerous cases over the last few years, including Lawrence v. Texas (ruling all anti-sodomy laws unconstitutional), Roper v. Simmons (ruling unconstitutional capital punishment for minors under age 18), Boumediene v. Bush and Hamdan v. Rumsfeld (both dealing with the question of granting terrorist detainees the constitutional rights traditionally afforded to only U.S. citizens).

Can ObamaCare Survive the Constitutional Challenge

Last week a severe blow was dealt to the long-term prospects of ObamaCare. U.S. District Court Judge Henry E. Hudson ruled that the Minimum Essential Coverage Provision (commonly referred to as the “individual mandate”) is unconstitutional. ObamaCare required weeks of arm-twisting and bribes, along with a labyrinthine process of obscure parliamentary procedures, to get the bill passed without a final vote. Even then it required Nancy Pelosi keeping her caucus in Washington (and away from the growing number of voters back home vehemently and vocally opposed to the bill) until nearly midnight on Christmas Eve in order to get the bill to pass by a hair.

There are a number of constitutional issues with the health care “reform” legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.

Bader-Ginsburg’s Trump Comments Beyond Inappropriate


“The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” ~ Joseph Story (U.S. Supreme Court Justice, called the “Father of American Jurisprudence”), 1833, Commentaries on the Constitution

I suppose we can finally abandon any pretense that the judiciary is still a neutral body rendering opinions based on an impartial interpretation of the Constitution as written. Rather, the judiciary, and especially the Supreme Court, has become a supra-legislative oligarchy of nine (or eight, for the time being) which imposes its own version of morality and “social justice” upon the roughly 315 million Americans who are expected to abide by its diktats.

Two recent examples tell us all we need to know in this regard.

First, 7th Circuit Judge Richard Posner a few weeks ago declared his unbridled contempt for the Constitution he is sworn to uphold, stating “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century…Let’s not let the dead bury the living.”

Ruth Bader Ginsburg isn’t stepping down from the Supreme Court before 2016

Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg, one of the most reliable Leftist votes on the Supreme Court, made it clear this past week that she has no intention of retiring so that President Barack Obama can pick her successor:

At age 80, Justice Ruth Bader Ginsburg, leader of the Supreme Court’s liberal wing, says she is in excellent health, even lifting weights despite having cracked a pair of ribs again, and plans to stay several more years on the bench.

In a Reuters interview late on Tuesday, she vowed to resist any pressure to retire that might come from liberals who want to ensure that Democratic President Barack Obama can pick her successor before the November 2016 presidential election.

Ginsburg said she had fallen in the bathroom of her home in early May, sustaining the same injury she suffered last year near term’s end.
The justice, who survived two serious bouts with cancer, in 1999 and 2009, is keeping up a typically busy summer of travel, at home and abroad, beginning next week with a trip to Paris. Ginsburg said she was back to her usual weight-lifting routine and recently had good results from a bone density scan.

These comments are similar to hints dropped by Ginsburg back in 2011, when she joked that she had “a way to go” to catch up with Justice Louis Brandeis, who retired when he was 83. That indicated that she would stay on the Court until at least 2016.

Did justices drop hints about ObamaCare fate?

Though no one thought a ruling on ObamaCare would come yesterday, there was quite a turnout of reporters at the Supreme Court as decision were announced in several pending cases. We don’t yet know how the nation’s High Court will go in this specific case, but some hints may have been recently dropped by two justices, as Avik Roy explains:

On Friday, Associate Justice Ruth Bader Ginsburg spoke at the annual Court review of the American Constitution Society, a group “dedicated to…countering the activist conservative legal movement.” Ginsburg said that she was quite aware of the controversy surrounding the Obamacare case. “Some have described the controversy as unprecedented and they may be right if they mean the number of press conferences, prayer circles, protests, counter protests, going on outside the court while oral argument was under way inside.”

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.

Supreme Court leaves environmental policy to Congress and the EPA

On Monday, the Supreme Court unanimously ruled in an opinion written by Justice Ruth Bader Ginsburg that environmental policy is a matter that shouldn’t be worked out through the judicial system:

In the most significant global warming case to reach its front doors, the Supreme Court on Monday blocked a major lawsuit brought by states and environmental groups against five large power companies they accused of creating a public nuisance because of carbon dioxide emissions.

The court ruled 8-0 that the authority to set standards for reducing emissions lies with the Environmental Protection Agency, under air pollution rules established by the Clean Air Act. The court said just because the EPA hasn’t acted yet doesn’t mean that its authority is no longer valid.

The Clean Air Act “provides a means to seek limits on emissions of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track,” reads the order written by Justice Ruth Bader Ginsburg.

“If EPA does not set emissions limits for a particular pollutant or source of pollution, states and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court,” the decision continues.

The decision isn’t really anything to get overly excited about. The court did what it was supposed to do. Hopefully, Congress will find a way to prevent the EPA from implementing cap-and-trade through regulatory fiat.

SCOTUS strikes down discrimination lawsuit against Wal-Mart

The Supreme Court yesterday shutdown down a class action discrimination lawsuit against Wal-Mart, every liberal’s favorite store:

The Supreme Court ruled Monday that a sweeping gender-discrimination lawsuit against Wal-Mart Stores Inc. can’t proceed as one large class action, a significant victory for the discount retailer and other corporations.

The court, in an opinion by Justice Antonin Scalia, said the plaintiffs didn’t have enough in common to pool all their claims into a single case. The plaintiffs wanted to sue on behalf of more than a million women who are current or former employees of Wal-Mart.

To proceed, Justice Scalia said, the plaintiffs would need significant proof that Wal-Mart operated under a general policy of discrimination. “That is entirely absent here,” he wrote in a 27-page opinion.

Justice Scalia also said the plaintiffs’ claims for back pay couldn’t proceed in the class-action lawsuit. Wal-Mart, he said, was entitled to individual determinations of each employee’s eligibility for back pay.

Justice Scalia said Wal-Mart’s corporate policy barred discrimination and said the plaintiffs offered “weak” anecdotal evidence. His opinion quoted with approval a lower-court judge’s view that the plaintiffs “have little in common but their sex and this lawsuit.”

Goodbye Fourth Amendment

Say goodbye to the Fourth Amendment folks.  After saying a fond farewell to it in Indiana Monday, today we get to learn how it’s now almost dead on the national stage as well.  Yesterday, in the case Kentucky vs. King, the Supreme Court took a big bite out of the protections we are supposed to enjoy.

Courtesy of the Cato Institute:

In this case, the police were after a drug dealer after he fled from a controlled-buy transaction.  The dealer entered some apartment but the police were unsure of the unit number.  As the police got closer, they could smell marijuana coming from a nearby apartment.  Instead of posting an officer nearby and applying for a warrant, they decided to bang on the door, shouting “Police!”  Hearing some rustling inside, the police broke down the door so evidence could not be destroyed.  The occupants were arrested on drug charges and they later challenged the legality of the police entry and search.  (As it happens, the dealer the police were trying to capture was found in another apartment.)

The lower courts have generally frowned on what they describe as exigencies manufactured by police conduct, but the Supreme Court has now overturned those lower court precedents by a 8-1 vote.  In dissent, Justice Ginsburg asked the right question: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”  And the unfortunate answer to the question is, a lot less secure.

I don’t often agree with Justice Ginsburg, but this time I agree completely.

Liberty Links: Morning Reads for Monday, February 7th

Below is a collection of several links that we didn’t get around to writing about, but still wanted to post for readers to examine. The stories typically range from news about prominent figures in the liberty movement, national politics, the nanny state, foreign policy and free markets.

The views and opinions expressed by individual authors are not necessarily those of other authors, advertisers, developers or editors at United Liberty.