CHARLOTTESVILLE, Va. — 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 last Monday, Scalia — evidently alluding to the recent marriage equality decisions — opined that "[i]t'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 importantly, 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."
At first blush, that sounds an awful lot like Ginsburg's argument. Her principal complaint about the Roberts court is also that it overreaches. Her objection to the Voting Rights Act decision, both as outlined in her dissent and in the Times interview, is that it is "activism" for the court to reach out and strike down legislation that passed by large margins in the Congress. She is not, like Scalia, complaining about the psychological or moral weakness of individual jurists. She is upset by the institutional power grab of a court that overreaches without having a clue what it's doing. Ginsburg has been increasingly vocal in recent years about her colleagues' failure to understand how the real world works. Often when she talks about the Lilly Ledbetter case, or the two employment discrimination cases from this term, she invokes a perceived out-of-touchness in her colleagues, as she did dissenting in the Title VII cases where she accused her brethren in the majority of being "blind to the realities of the workplace." (This was of course the dissent that drove Justice Samuel Alito to some epic eye-rolling on the bench, another highlight of the term Ginsburg discusses with Liptak in her interview).
So while Scalia despairs of judges' capacity to solve inchoate moral dilemmas, Ginsburg despairs of their capacity to understand how the real world operates. Scalia wants judges to stop trying to fix things. Ginsburg wants judges to stop stopping the rest of us from fixing things. In a way, they mirror each other perfectly. Over and above all that, Ginsburg worries that when the courts make a mess of things in the real world, Congress as it now exists lacks the institutional ability to fix it. Scalia is more complicated. He says he would defer to legislative bodies on most things (if gays want to pass a law, they should just do it!) but then rather consistently finds reasons to second-guess Congress whenever it actually does legislate. In other words, he is always apt to defer to the bill that didn't happen, but ready to strike down a bill (like the Affordable Care Act, or the VRA) that did.
Which brings us to how real their fears really are. In spring Nathaniel Frank suggested in Slate that Scalia's arguments about moral opprobrium and approval in the law have been disproved by time, and also overtaken by history. Whereas Ginsburg's prediction in the Voting Rights Act dissent — that the assumption that the law works and is thus no longer needed "is like throwing away your umbrella in a rainstorm because you are not getting wet" — has proven prescient, as Richard Hasen recently noted in Slate. The speed with which states like Texas and North Carolina sprinted to make voting more difficult in the weeks after the decision suggests that Ginsburg was correct in her assessment: The court badly misread the status quo.
The true nature of their grievances is more subtle, and reflects all the interesting ways in which both Scalia and Ginsburg are of an era that is rapidly coming to an end: Scalia longs for a time in which the courts stayed out of it. Whereas Ginsburg longs for a time in which the court could properly redress social injustices — in matters of race and of gender — with a real-world understanding of how that plays out on the ground. To put it another way, despite the fact that only three years separate them chronologically, Scalia seems to want to reinstate the legal worldview of the 1980s and Ginsburg wants to reinstate that of the 1970s. With the exception of perhaps Clarence Thomas, they are the last two sitting justices who are so completely of another era — in each case an era whose legal hopes were never fully realized. No wonder they're both feeling so frustrated. And no wonder they're both so willing to say it so loudly.
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Lithwick writes about the courts and the law for Slate.