In USA Today, Justice Ginsburg, the only female on the Supreme Court, says that the high court needs another woman. Yet the reasons she gives run counter to the purpose of the Supreme Court, which is to interpret the laws and the Constitution of the United States.
Her status as the court’s lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl’s lasting humiliation, but Ginsburg stood out in her concern for the teenager.
“They have never been a 13-year-old girl,” she told USA TODAY later when asked about her colleagues’ comments during the arguments. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
Understanding and empathy for one side or the other in a dispute should be completely irrelevant to the interpretation of the law and the Constitution. Of course it can go the other way, too:
Often Ginsburg’s view as the court’s only woman emerges in an understated way. The strip-search case that began in 2003 was different: Of all the justices, Ginsburg was the most focused on the plight of Arizona student Savana Redding.
After a classmate told the vice principal at the Safford Middle School that Savana had unauthorized prescription-strength ibuprofen, the vice principal directed a nurse and administrative aide to strip-search the girl. Savana’s mother, April Redding, sued the school district for violating her daughter’s right to be free from unreasonable searches. Authorities found no drugs on Savana.
“After Redding was searched and nothing was found, she was put in a chair outside the vice principal’s office for over two hours, and her mother wasn’t called,” Ginsburg noted during oral arguments. “What was the reason for … putting her in that humiliating situation?”
One of Ginsburg’s liberal colleagues, fellow Clinton appointee Stephen Breyer, saw it a little differently. He said he had a hard time understanding the girl’s claim that her rights had been violated.
“I’m trying to work out why is this a major thing to, say, strip down to your underclothes, which children do when they change for gym,” Breyer said. “How bad is this?”
Ginsburg retorted that school officials had directed Redding “to shake (her) bra out, to shake, shake, stretch the top of (her) pants.”
She later told USA TODAY, “Maybe a 13-year-old boy in a locker room doesn’t have that same feeling about his body. But a girl who’s just at the age where she is developing, whether she has developed a lot … or … has not developed at all (might be) embarrassed about that.”
Breyer is, of course, another liberal. It does not matter, Justice Breyer, that you might not be embarrassed in such as situation. Nor, Justice Ginsburg, does it matter that you would be. In fact, it does not even matter what the particular girl in question felt about it at the time. The only things that matters are the law and the Constitution.
Then there is the Ledbetter v. Goodyear case, in which Justice Ginsburg read her dissent aloud in court.
This was the case, yet to be ruled upon, that Ginsburg felt repeated Ledbetter. That 5-4 opinion written by conservative Justice Samuel Alito — who succeeded O’Connor — rejected the notion that pay discrimination is harder to detect than other job bias and dismissed the “policy” argument that the law allows more flexibility for suing in such situations.
Ginsburg was so incensed by the decision that she took the unusual step of reading her dissenting opinion from the bench and called on Congress to reverse the court.
Congressional legislation, signed into law by Obama as one of his first official acts, gave workers far more freedom to sue for pay bias long after it began.
Ginsburg said in an interview that she believed some of her male colleagues had trouble understanding the difficulty of getting pay-disparity information and the general reluctance of women to claim a workplace policy is unfair.
“As often as Justice O’Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases,” said Ginsburg, a Brooklyn, N.Y., native and Democrat. “I have no doubt that she would have understood Lilly Ledbetter’s situation.”
This certainly gives the appearance that Justice O’Connor’s sex discrimination rulings were biased. That is not to say that the decisions of the men were unbiased. If fact, I concur with Justice Ginsburg’s dissent — it is both well-reasoned and well-founded on precedent. The majority opinion was that the act of giving lesser pay-raises were the discriminatory acts, while Ginsburg (three others’ concurring) argued that each paycheck was an act of discrimination. Since it is certainly within the power of Goodyear to grant out-of-cycle raises, I must also concur with Ginsburg.
And if I may digress to fire a salvo at the “conservative” side of the court, I have a problem with Justice Scalia’s questioning in the case of AT&T this term, in which the company is accused of discriminating against pregnant employees:
When the attorney for the women challenging AT&T took his turn at the lectern, conservative Justice Antonin Scalia suggested that if the court ruled against the company in the case involving retroactive benefits, more lawsuits would come.
“You’re scaring me,” Scalia said, drawing laughter from spectators — but not from Ginsburg.
I do not give a rat’s patootie how many lawsuits will be filed — if illegal acts have been committed, then the law should be applied in every one of those cases. One cannot say that the law should not be applied as it is written, or that one’s Constitutional rights should not be protected, just because a lot of people may demand justice. That is not my idea of conservatism, Justice Scalia.
I think this is one of the worst blog posts I have ever read.
It’s probably the only blog post you’ve ever read — assuming you actually read the whole thing.
Bill,
So. What makes it the worst?
Empathy should not play into a courts final say. Our Judicial System should follow the law as written and these judges who have the need to be empathic to cases should not be judges. Once they start putting in their emotions than the case takes a wrong turn and the people who suffer the most are the victims and future victims.
In your world Jack of the GOP NeoCon lemmings it is a matter of extremes of black and white.
So I guess a written “Opinion” – should be void of personal “feelings/tnoughts” even if it is coming from a Supreme Court Justice. Hell then let’s get rid of all Judges and have a super computer make any future rulings.
Evidently, Baron Rosedown, THAT would be the ideal Supreme Court – to some.
Hardly surprising. At my oral argument, her one question misquoted the (arguably) controlling decision.
I wish people who want to emote publicly became actors, rather than lawyers or judges.
Review the history of the Supreme Court decisions and this is what you’ll find:
1. Everyone’s ok with the case law surrounding the Constitution.
2. Something new pops up. Conservatives say “Don’t change a thing!”
3. The reasonable people prevail and the “thing” is changed, mostly through case law, but perhaps through constitutional amendment
4. Statutes catch up to the case law
5. Conservatives claim the people that originally disagreed were foolish
6. Go back to #1 surrounding a different issue.
Today even conservatives:
* Think it’s crazy to limit the meaning of “All men are created equal” to its original meaning
* Don’t agree with slavery
* Think “separate but equal” is wrong
* Think pregnant women shouldn’t get fired just because they’re pregnant
.
.
.
Bottom line is that we would be in far worse shape if all justices were “strict constructionists”. Even Scalia “legislates from the bench” and ignores precedent when he wants to.
One of the major focuses in the constitution is the protection of minority rights. There’s nothing bad about cancelling a law that’s just wrong. And empathy is just the idea of seeing a position from another’s point of view. This is necessary in almost all cases to make the right decision.
“Once they start putting in their emotions than the case takes a wrong turn and the people who suffer the most are the victims and future victims.”
Don’t forget the defendants. Can a defendant receive a fair trial where the emotions of the bench are a factor ?
This is one reason we have recusal..
“1. Everyone’s ok with the case law surrounding the Constitution.”
Actually this paradigm began in the 20th century, an early artifact of progressivism..
dans, I think you meant the early 19th century with the Marshall court.
Hawaii Lawmakers Pass Bill to Create ‘Islam Day’
Hawaii’s state Senate overwhelmingly approved a bill Wednesday to celebrate “Islam Day” — over the objections of a few lawmakers who said they didn’t want to honor a religion connected to Sept. 11, 2001.
http://www.foxnews.com/politics/2009/05/06/hawaii-lawmakers-pass-create-islam-day/
For lack of an appropriate category for this trash, I have entered it here because I’m sure it will be headed for SCOTUS.
I didn’t see Hawaii creating 9/11 day to honor the victims.
Lately, they all they do is complain that Hawaii was acquired by the US Illegally.
I agree with them H.E. — thus, 0bama cannot be President, being (allegedly) born in Hawaii, which is not legally a State.
No, a written opinion should be void of personal feelings ESPECIALLY if it is coming from a Supreme Court Justice.
Sanity, your last post was interesting (and in many respects innacurate and misleading). The implication seemed to be that activist judges who legislate from the bench enable the country to move forward, despite the best efforts of conservatives. At the heart of the original message posted by Jack was the notion that judges should not legislate, they should interpret and rule – based on the U.S. Constitution, not on their own feelings or beliefs. Your post ignores a great deal, including the actual legal history surrounding slavery and equality in America (not the fantasized version liberals like to put forth), the historical roots of liberals (or progressives) vs. conservatives in America, the true beliefs and actions taken by many early progressives in America concerning “minorities”, and Article 1 Section 1 of the U.S. Constitution.
“Separate but equal” (Plessy vs. Ferguson) was “legislation from the bench” in its ultimate form! Talking slavery/equality/minority rights does not buttress your argument.
“…a few lawmakers who said they didn’t want to honor a religion connected to Sept. 11, 2001″
This is NOT a 9/11 issue, it is a seperation of church and state issue THAT is why there should not be a Islam Day. Same reason why Christmas has (or should be) Winter Holiday when observed by the State.
Sanity,
The place to move the ball forward is in the legislature, not the court. The court should look the lense of the constitution and determine if something is constitutional or not. It is a question of roles which is part of the rule of law. We need to guard that ideal, a society the works on circumstance and not rules becomes capricious in its governence.
Actually no sanity, I am referring to the first two decades of the 20th century.
“Hawaii Lawmakers Pass Bill to Create ‘Islam Day’”
Troll, by what authority is the state of Hawaii prevented from doing this ? Does their state constitution prevent this ?
The concept of separation of church and state stems from Jefferson’s letter to the Danbury Baptist Association, where he discusses Congress and the church. If his view was the states were limited as well, he would have mentioned that, as that was the underlying concern of the Danbury Baptists being a minority religion in Connecticut. Jefferson intentionally excluded this in his reply, possibly because he believed the federal government had no business mingling in the affairs of the states.
Wise man Jefferson..
You beat me to it, Rachelfriend.
I have to say, it makes me sad that so many people are willing to believe the version of history that has “Conservatives” supporting slavery, and suppressing equal rights, etc, when in fact, (if the anachronism of applying modern labels must be done), “Conservatives” were at the forefront of opposition to slavery, on religious and moral grounds, (that is, what would be called the “Christian Right”, who are held in such disdain by today’s pop culture.)
Hard to say how many of today’s “Liberals” would react if confronted with, say, 1850’s America and slavery. On the one hand, ‘liberals’ are often highly empathetic, at least in the abstract (I find many are empathetic to imaginary groups of victims, while having little empathy for non-victims.) It’s this, combined with a desire to do “good” that makes them dangerous, when it reaches the point that they believe they know better what’s good for other people, even when the people they’re trying to help disagree, so the ends justify almost any means. (I know many, many people who I’d define this way, including my own mother. I recognize the injustices inherent in such sweeping generalizations, but for the purposes of discussion…)
On the other hand, the liberal impulse to *not* honor or observe other people’s ethical systems (wit. ‘moral relativism’) might make them opt for non-interventionism on the matter of slavery.
Anyway, this tendency to slap labels, like “liberals” or “Conservatives” rarely does justice to anyone today, since we all have different views and beliefs. As inaccurate as those labels might be now, trying to apply such labels to society 150 years ago is ludicrous…
Of course, 150 years ago, almost *everyone* was Conservative by today’s standards (even just 50 years ago — the 1950’s are much criticized and maligned by most liberals.) So, by definition, anything negative that occurred in the past (Indian genocide, slavery, Industrialization, sweat shops, pollution, segregation,etc, etc, etc) must be the fault of “Conservatives”.
Squiddy, this is really one area I find so frustrating. I was reading some book recently (can’t remember the title) that had a short discussion of the abolitionist movement in America. It labeled the abolitionists as “liberal” while noting that they based their opposition to slavery on strong religious and moral grounds. If the book was written for today’s audience, then as you pointed out, a more appropriate term for the abolitionists would probably have been “Christian Right” or “Christian conservative”, but that would put off many on the “left” who want to put forth the one-sided argument Sanity has made.
This is just my opinion of course, but I feel strongly that one of the best tools progressives have is their ability to appropriate terms and change their meaning over a short period of time. It results in confusion for “lay people” who attempt to follow a clear path in trying to understand the progression of an idea from one point in time to another. This is one of the reasons so many people fall for the “conservative bad”/”liberal good” nonesense.
Progressives are just better at marketing, but in practice their “ends justify the means” mentality wreaks havoc on our judicial system and results in justices legislating from the bench (as openly but coyly acknowledged by Judge Sotomayor), which is NOT their role.
I spoke with my young nephew this past week about the Supreme Court (his class was studying the courts and so this was an opportune moment to give him information he wouldn’t learn in the classroom). We discussed a couple of court cases and what “constitutionality” actually means vs. how the courts sometimes rule. He understood right away that some of the rulings we covered were political or “activist” and that they violated clear principles outlined in the U.S. Constitution. One case in particular that spelled this out for him was “Kelo vs. New London”. It speaks to the very thing you talked about, where people engage in an action that they think is beneficial, even if it is not wanted by the very people they claim they are helping. Real knowledge is the only thing that cuts through the marketing machine progressives have perfected.
“..best tools progressives have is their ability to appropriate terms and change their meaning over a short period of time.”
This is true and alarming. How (re)interpretations of events become “true” through sheer repetition. It’s all very “1984″ to me, itself based on the practices of another beloved “Progressive” leader, “Uncle Joe” Stalin.
That’s why things like government control of student loans and quasi-mandatory “community service” programs are disturbing – this is how things like the Komsomol and Hitlerjugend came about. How long before a government bureaucrat denies a student loan to a kid because of their lack of attendance in a government-sponsored “service” program (have a look at ACORN “leadership” training curricula for a sample of what “service” looks like – “indoctrination” is another name for it.) Does all this sound like America to you?
And the government’s systematic dismantling of capitalism, restrictions on free speech (expansive “hate crime” (“ThoughtCrime”, anyone?) legislation, and watch what the FCC does in the next year to talk radio) and government abrogation of property rights are all certainly familiar – is “forced collectivization” in our future?
I know I’m using apocalyptic terms – but do you you think people in Germany in 1933 could imagine what the next 12 years would bring?
“Soft Tyrannies” rarely remain so.
Too good and funny not to pass along: http://online.wsj.com/article/SB124217427117013167.html
You’re so right Squiddy. We’re in a pretty precarious position as a nation. Knowledgable Progressives don’t want people to view all of their policies as a whole and follow them to their logical conclusion. They also don’t want us to look back and be able to clearly identify the roots of their policies. Progressives that are not so knowledgable merely don’t understand the roots of the movement, and can’t see where all of these restrictive and controlling policies lead. The “progressive good/conservative bad” mantra doesn’t stand up to real scrutiny, but unfortunately it’s a good tag line. Conservatives need to somehow boil down Progressive history such as this into easily digestable bites: http://reason.com/news/show/36650.html
Rachelfriend,
Hilarious! I hereby proclaim this fodder for a project I am currently toiling over.