Last week, Justices Ruth Bader Ginsburg and Antonin Scalia each grabbed headlines with controversial late-summer comments about the dysfunctions of the current Supreme Court. Speaking to a Montana meeting of the Federalist Society —– evidently alluding to the recent marriage-equality decisions —– Scalia opined, that “It’s not up to the courts to invent new minorities that get special protections.” (There is no transcript of the event, as usual, so we have to rely on contemporaneous newspaper accounts and Twitter reports). Then, in a rare and wide-ranging interview with The New York Times’ Adam Liptak later in the week, Ginsburg offered up the view that this past term’s Voting Rights Act decision was “stunning in terms of activism,” and that the Roberts court, “if it’s measured in terms of readiness to overturn legislation . . . is one of the most activist courts in history.”
Predictably, the left-wing blogosphere reacted with horror at Scalia’s implication that the courts had “invented” a homosexual minority. And equally predictably, the right-wing blogosphere exploded in umbrage at Ginsburg’s suggestion that the Roberts court is “activist” and that the Voting Rights Act case was wrongly decided. It’s not hard to spot some important parallels between the two free-range justices —– the most famous legal frenemies of their time —and their controversial public statements about the Roberts court. Both Scalia and Ginsburg are among the most senior members of the court. Scalia is 77, and Ginsburg is 80. Each is doubtless beginning to feel that there is much they will not accomplish in their remaining time on the bench, and each appears ever more willing to achieve with dissents, speeches and interviews what can’t be done in the four corners of a majority opinion.
More important, both seem to be longing for some long-gone judicial era: Ginsburg evidently missing her own activist days as a women’s rights litigator, and Scalia missing the Ed Meese Revolution when everyone agreed that judges were utterly useless.
But what’s most striking in their comments is how far the court has moved from both of them. Scalia and Ginsburg are arguably the intellectual leaders of the right and left wings of the current court. And each of them is convinced that the court is absolutely headed in the wrong direction.
It’s tempting to suggest, then, based on the recent comments of the two, that it’s a wash. If the court’s radical liberal bomb-thrower and equally radical conservative firebrand are equally frustrated, maybe the Roberts court is tacking precisely down the middle. That assessment would be precisely wrong. But it is worth a quick comparison of their complaints.
Consider, for a moment, some of Scalia’s other recent complaints about the courts. In addition to his accusation that judges are “inventing” minorities to protect, instead of letting the legislative branch do it, he also argued in Montana that the court is exceptionally poorly suited to evaluate the constitutionality of the government’s leviathan machinery of eavesdropping. (“Of all the three branches, we are the one that knows the least about the nature of the threats to the country, and we have the least ability to find out about it.”) A few weeks earlier, he invoked the Holocaust in a Colorado speech to illustrate what happens whenever judges begin to interpret the law in ways that reflected “the spirit of the age.” Shortly before that, he gave a speech in North Carolina, tipping his hand about the outcome in the gay-marriage cases by bemoaning the damage done to the Constitution by the advent of the “judge moralist.” In Scalia’s view —– and it’s a view he expounds upon with ever more provocative language and color —– what’s wrong with the current court lies in its effort to do too much. And the too much in question is its effort to answer “moral” questions, as he noted in his North Carolina speech, that have no “scientifically demonstrable right answer.”