Ginsburg's Elle Interview: Identity Politics in Robes

Ruth Bader Ginsburg's recent Elle interview reads like a primer on identity politics, exposing the rot at the heart of the judiciary. Ginsburg's griping about not being able to retire because Obama couldn't appoint anyone like her drew a lot of attention, and although it's hardly the most outrageous claim she made it's a very good place to start.

Who do you think President Obama could appoint at this very day, given the boundaries that we have?  If I resign any time this year, he could not successfully appoint anyone I would like to see in the court.

This is a political statement. Anyone who knows what "borking" means knows the Supreme Court has been relentlessly politicized by the left. So thoroughly politicized that we're not shocked when a notorious Constitution denier demands her thumb stay on the scale even after she retires. There's no surprise here. Respect for "boundaries" is too much to ask of a judge who shows little respect for the Constitution itself. Ginsburg apparently rejects them because respecting them would nudge the Court to the right, something she can't tolerate.

Any doubt about that disappears when Ginsburg faults the Democrat-controlled Senate for not making the confirmation process political enough to secure her legacy.

[The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.

She also points the finger of blame at Anthony Kennedy for betraying the left on her signature political issue, abortion rights.

To be frank, it’s one person who made the difference: Justice [Anthony] Kennedy. He was a member of the triumvirate used to [reaffirm] Roe v. Wade in the Casey case, but since then, his decisions have been on upholding restrictions on access to abortion.

This isn't a judge talking law; it's a partisan hack talking politics. Ginsburg is whining, a la Sandra Day O'Connor, that her personal legacy is at risk. That kind of narcissism sets her up as a target for conservative snark; but although laughing at an ideologue is often worthwhile, it also risks missing the larger point.

What condemns Ginsburg is not only what she says, but what she can't afford to say. When she mounts her women's rights hobbyhorse she doesn't invoke the Constitution. She frames the issue as a political question, because not openly taking sides would amount to a Kennedy-like betrayal of her special interest constituency. Politicizing the Court is part of Ginsburg's DNA. So when she recalls her first oral argument in 1973, she provides a revealing glimpse into the mechanics of politicization. Here's her take on representing Sharon Frontiero, a lieutenant who sued the Air Force for denying dependent benefits to her husband that were routinely granted to Air Force wives.

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did. So I relied on myself as kind of a teacher to get them to think about gender. Because most men of that age, they could understand race discrimination, but sex discrimination? They thought of themselves as good fathers and as good husbands.

That last sentence (my emphasis) is no gratuitous putdown; it's justification for her job to "teach" them otherwise.

There are several issues in play, all related to the exercise of power. Ginsburg stereotypes and denigrates men -- in, of all places, an argument against stereotyping women! -- much as Sotomayor dissed white male judges with her wise Latina woman shot. The implication is just as clear: these men are not good enough fathers and husbands, any more than they are good enough lawyers and judges, because they are not women. Their shortcomings have nothing to do with constitutionality or marriage; they're defined by identity politics and its culture of victimization and entitlement. So, short of a sex change and a stretch in gender reeducation camp, their deficiency is unfixable. Which places them at a permanent political disadvantage.

The same kind of sexist bullying is behind Ginsburg's objection to restrictions on taxpayer-funded abortion. Garnished with a subtle -- if self-contradictory -- attack on states' rights.

The impact of all these restrictions is on poor women, because women who have means, if their state doesn’t provide access, another state does. I think that the country will wake up and see that it can never go back to [abortions just] for women who can afford to travel to a neighboring state.

Disparate impact rears its ugly head, enticing Ginsburg to denounce a nonexistent conservative agenda to "promote" birth that bears an eerie resemblance to the left's actual agenda of porous borders, anchor babies, welfare for illegals, and voter fraud.

It makes no sense as a national policy to promote birth only among poor people.

Once again, the irony is thick. And it gets thicker once it registers that the right's opposition to a national policy was supposed to be the problem, and that the political benefits of victimization and entitlement are not meant for the weak and the poor. The oppressed are just the lever that moves the stone. When it moves, every member of the victim class becomes entitled: the poor to free abortions, the permanent political class to power.

There's no mistaking this. Ginsburg's comment on O'Connor's retirement expands the victimization/entitlement dynamic to include even women who have attained the highest pinnacle of a respected and powerful calling.

When Sandra left, I was all alone…. Now Kagan is on my left, and Sotomayor is on my right. So we look like we’re really part of the court and we’re here to stay.

Identity politics is the gift that keeps on giving. Even four decades later, having been confirmed by the Senate with overwhelming Republican support and entirely secure in her seat on the Supreme Court, Ginsburg's narrative of victimhood and entitlement whines on. But with a difference: despite so much progress in women's rights that Ginsburg's own daughter and granddaughter are comfortable knowing they can get an abortion if they want one, things have gotten worse.

Now discrimination is more subtle. It’s more unconscious. I think unconscious bias is one of the hardest things to get at.

No, it's really just the same. Men still think of themselves as good fathers and husbands, they still aren't women, they're still unfixable, and they're still being placed at a political disadvantage.

The ribbon tying up this package is Ginsburg's take on judicial activism and the Court's Citizens United and Hobby Lobby decisions. Once again, she marginalizes constitutionality. Judicial activism promoting a culture of victimization and entitlement is not "wrong." It can't be wrong, because it's not defined by the Court's disregard for the Constitution, but by the number of laws overturned. 

[d]epends on whose ox is being gored. You think of activism, Congress is supposed to make the laws. So, it passed a campaign finance law. This court says, “No, Congress, you can’t do that.” This court is labeled conservative, but it has held invalid more statutes than most courts. That’s why I say that activism is like “beauty is in the eye of the beholder."

Everybody does it, so the left can't own it. According to Ginsburg, judicial activism is like the clichés she uses to describe it:  it has no real meaning. It's just a label pasted on the winning side in the political fight that decides whose policy will be imposed on the American people by a tiny political elite: nine -- or even five -- unelected judges with lifetime tenure.

That's what ideologues like Ginsburg would have us believe, and it's a bald-faced lie. Politicizing the Court isn't just about decisions, or even about how broad or narrow they are; it's about the ideological talking points woven into opinions that, over time, corrupt the judiciary, undermine the Constitution, and rot the culture. The talking points Ginsburg mouths are the raw material of politicization: the Senate's power of advice and consent is a nuisance to be nullified for partisan gain; a woman's right to a free abortion trumps the religious liberty of Catholics forced to pay for it; striking down a law that criminalizes political speech is judicial activism; and women will always be entitled because they are oppressed by the unconscious bias of men who love them and celebrate their equality.

Ginsburg's demagoguery is identity politics in robes, and like all progressive redistributive theory it expresses itself as a zero sum game where the fix is in. Oppression, conscious or not, implies guilt, and guilt demands retribution. So in the end, entitlement for the oppressed is balanced by disentitlement of the oppressor. Whites. Men. Christians. Catholic bishops.  Republicans. Tea Partiers. Small business owners. The 1 percent. Fox News. The Koch brothers.  And on the world stage, America.

Thanks to Elle we've met the enemy, and she's not us.

Mr. Stewart is a freelance writer living in Austin, Texas.  He is writing a book on the establishment clause and welcomes feedback at

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