Bryan Fischer
Ginsburg dissent: judicial activism on parade
By Bryan Fischer
Several excerpts from the Supreme Court ruling upholding Congress' 2003 ban on partial birth abortion are worth noting. In Anthony Kennedy's majority opinion, he expresses a view often espoused by pro-life groups: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." We could not have said it better ourselves.
Also little noticed in the after-ruling discussion is this clear statement from the concurring opinion issued by Justices Antonin Scalia and Clarence Thomas. "[T]he Court's abortion jurisprudence, including Casey and Roe v. Wade ... has no basis in the Constitution." There is no question that the ground has been laid for a challenge to the fundamental premise of Roe v. Wade, and that the addition of one more principled originalist judge may be enough to overturn our generation's version of the Dred Scot decision.
In contrast, Justice Ruth Bader Ginsburg revealed the principle problem with activist judges: they view their role as lawmakers rather than law-appliers. It's clear that for Ginsburg, the issue is not whether the partial birth ban is constitutional, but whether it represents enlightened public policy. Thus she clearly views the court as a kind of super-legislature, which has the right to second-guess any public policy decisions the Justices don't happen to like.
Her opinion, as one observer said, "reads like a feminist manifesto straight from the National Organization for Women." For instance, she says the real issue here is "a woman's autonomy to determine her life's course." For Ginsburg, this right to self-determination overrides any right to life that her baby might have. The big problem for Ginsburg is that the Constitution guarantees the right to life, but nowhere guarantees a right for women to do whatever they please, regardless of whose life is snuffed out in their pursuit of self-fulfillment.
She even goes so far as to say that Congress' interest in protecting the life of a partially-born baby is "irrational." But this way of approaching judicial rulings would obviously lead to a completely unpredictable judicial system, as it would grant license to any judge to set aside any law he doesn't like simply on the grounds that the law doesn't make sense to him.
Ginsburg's view is that the majority ruling emanated from a mindset that "is no longer consistent with our understanding of the family, the individual, or the Constitution." Note that for her, it is not the Constitution that has overarching legal authority, but our "understanding" of it. This is a recipe for judicial anarchy. And further, if her understanding of "the family" is different than Congress's, well, too bad for Congress.
But in our system of government, it is the responsibility of the legislative branch to make public policy, and the only responsibility of judges is to apply that public policy fairly and evenhandedly in matters of legal dispute. They have no legal or moral authority to overturn legislation simply because they don't think it represents good public policy.
As I have mentioned before, the role of a judge is no different than the role of an umpire in baseball. An umpire has no prerogative to simply change the rules of baseball he doesn't happen to like. It is his responsibility to take the rules that are made by others and apply them fairly and evenhandedly on the field of play.
If judges are convinced that their role is to make sure our laws represent sound public policy, then in good conscience they should resign from the bench and run for legislative office.
We can be grateful today that at least five of our nine Justices understood their role last week, and a tragedy that the other four did not.
© Bryan Fischer
Several excerpts from the Supreme Court ruling upholding Congress' 2003 ban on partial birth abortion are worth noting. In Anthony Kennedy's majority opinion, he expresses a view often espoused by pro-life groups: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form." We could not have said it better ourselves.
Also little noticed in the after-ruling discussion is this clear statement from the concurring opinion issued by Justices Antonin Scalia and Clarence Thomas. "[T]he Court's abortion jurisprudence, including Casey and Roe v. Wade ... has no basis in the Constitution." There is no question that the ground has been laid for a challenge to the fundamental premise of Roe v. Wade, and that the addition of one more principled originalist judge may be enough to overturn our generation's version of the Dred Scot decision.
In contrast, Justice Ruth Bader Ginsburg revealed the principle problem with activist judges: they view their role as lawmakers rather than law-appliers. It's clear that for Ginsburg, the issue is not whether the partial birth ban is constitutional, but whether it represents enlightened public policy. Thus she clearly views the court as a kind of super-legislature, which has the right to second-guess any public policy decisions the Justices don't happen to like.
Her opinion, as one observer said, "reads like a feminist manifesto straight from the National Organization for Women." For instance, she says the real issue here is "a woman's autonomy to determine her life's course." For Ginsburg, this right to self-determination overrides any right to life that her baby might have. The big problem for Ginsburg is that the Constitution guarantees the right to life, but nowhere guarantees a right for women to do whatever they please, regardless of whose life is snuffed out in their pursuit of self-fulfillment.
She even goes so far as to say that Congress' interest in protecting the life of a partially-born baby is "irrational." But this way of approaching judicial rulings would obviously lead to a completely unpredictable judicial system, as it would grant license to any judge to set aside any law he doesn't like simply on the grounds that the law doesn't make sense to him.
Ginsburg's view is that the majority ruling emanated from a mindset that "is no longer consistent with our understanding of the family, the individual, or the Constitution." Note that for her, it is not the Constitution that has overarching legal authority, but our "understanding" of it. This is a recipe for judicial anarchy. And further, if her understanding of "the family" is different than Congress's, well, too bad for Congress.
But in our system of government, it is the responsibility of the legislative branch to make public policy, and the only responsibility of judges is to apply that public policy fairly and evenhandedly in matters of legal dispute. They have no legal or moral authority to overturn legislation simply because they don't think it represents good public policy.
As I have mentioned before, the role of a judge is no different than the role of an umpire in baseball. An umpire has no prerogative to simply change the rules of baseball he doesn't happen to like. It is his responsibility to take the rules that are made by others and apply them fairly and evenhandedly on the field of play.
If judges are convinced that their role is to make sure our laws represent sound public policy, then in good conscience they should resign from the bench and run for legislative office.
We can be grateful today that at least five of our nine Justices understood their role last week, and a tragedy that the other four did not.
© Bryan Fischer
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