Is Justice Ginsburg Tipping Her Hand ?

One of the stories making the rounds over the weekend was about a statement by Justice Ruth Bader Ginsburg that was critical of the landmark court ruling in Roe vs. Wade. Most of the coverage focused on the seemingly shocking statement by a liberal who would be expected to defend the case.

However the truth is that Ginsburg, a strong supporter of abortion rights, has also been a long time critic of the Roe ruling. She said as much in her original confirmation hearings back in 1993. Her issues with the case are twofold. First she felt the case should have focused not so much on the rights of the woman but the rights of the doctor and the right to privacy. Second, and perhaps more significantly, she felt that the ruling stopped what she termed “momentum on the side of change” and gave abortion rights opponents something to focus their anger on.

Although her views have been on the record for some time this is one of the few times she has stated them in such a public forum, which leads to the question of why she chose to do this now.

I suspect that it is her not so quiet way of tipping her hand about the pending court rulings on Proposition 8 (and to a lesser degree DOMA).

It is not unheard of for Justices to do this, Ginsburg herself made some public statements prior to the ruling on the Affordable Care Act which gave hints at the ultimate decision. Several Justices advised friends to be in the courtroom when the Roe ruling was going to be announced. It is not a regular practice but it does happen, and given the particular language she used I think it is a clear hint.

What I think it is suggesting is that the Court will do what some commentators (not that I’d mention any names) have predicted, which is to issue a very narrow ruling in Perry (the Proposition 8 case) which would apply only to California, perhaps even including specific language to that effect.

The most likely way they would do this is to simply rule that there was no standing for the defenders of Proposition 8. This would have the impact of tossing out Proposition 8 without ruling on any of the merits. Failing this they could issue a narrow ruling which emphasizes the California centric nature of the case.

In that vein it is worth remembering that the original California Supreme Court ruling which struck down the California law restricting marriage to a man and a woman only was premised on the fact that the California Constitution called marriage a fundamental right. This fact meant that the law had to meet strict scrutiny standards and thus failed.

Similarly the Federal Court ruling which invalidated Proposition 8 was based on the fact that the new law had taken away a fundamental right, which again required strict scrutiny standards be satisfied.

This would then allow the political process to move forward on the issue of marriage equality and given the actions by a number of states recently the argument of “momentum” seems to fit with what Ginsburg said.

Her statement does not seem to apply as much to the DOMA case since the challenge is focused on the issue of federal benefits rather than the part of the law which says one state does not have to recognize a same sex marriage from another state. However the statement could also be seen as suggesting the Court would be reluctant to use the California ruling to strike down laws in other states.

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Posted on May 13, 2013, in 14th Amendment, Constitution, Patrick. Bookmark the permalink. Leave a comment.

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