The Radical Moderation of Judge Ruth Ginsburg


June 25, 1993|By TRB

WASHINGTON — Washington. -- Judge Ruth Bader Ginsburg, we're told, is a ''moderate.'' Indeed, Judge Ginsburg tells us herself.

In her now-famous lecture at New York University, she practically foams at the mouth with moderation. An ''effective judge,'' she says, ''will speak in a moderate and restrained voice.'' Rather than issuing ''extravagant and divisive'' decisions such as Roe v. Wade, the courts should move ''modestly,'' one case at a time.

Can there be anything wrong with this? If, like me, you think the Supreme Court has abused its anti-majoritarian mandate -- and that Roe is Exhibit A -- then Judge Ginsburg's moderation seems almost exciting. At least that's what I thought before I actually read what she has written about Roe. Now I'm not so sure.

What does Judge Ginsburg say about Roe? She points out that in 1973, when the decision was handed down, state abortion laws were being liberalized. Nevertheless, the court issued an ''extravagant'' opinion that specified in detail just what restrictions on abortion would be permissible at which stage of pregnancy (with virtually none allowed in the first trimester).

Judge Ginsburg suggests she would have done it differently. Roe, she points out, tested an extreme Texas law that made abortion a crime unless it was a ''life-saving procedure'' on behalf of the pregnant woman. Judge Ginsburg would have simply stricken down this law, and left open the question of whether less extreme restrictions might be constitutional. This, she implies, would have avoided the ''backlash'' created by Roe.

Judge Ginsburg would also change the substantive basis of Roe. The court stretched the concept of ''privacy'' to cover abortion, but the judge clearly prefers to talk about the ''equal protection'' clause. The ''disadvantageous treatment of a woman because of her . . . reproductive choice is a paradigm case of discrimination on the basis of sex,'' she suggests.

All this second-guessing has alarmed Roe supporters. But it should also alarm Roe's critics. Judge Ginsburg, after all, does not make any substantive criticism of the ruling. She doesn't argue that ''privacy'' isn't in the Constitution or that ''privacy'' doesn't include abortion. She doesn't claim the court usurped what should be a democratic decision. Her argument is entirely result-oriented.

She says that if the court had been more ''modest'' and deferential it could have achieved the results she wants without all the fuss. There is the nagging suspicion that if the state legislatures refused to play their assigned role in her ''dialogue,'' the judge would have come up with some less ''modest'' way to help them ''catch up with a changed world.''

Nor is her equal-protection argument a ''moderate'' theory. This approach has been advertised as a way to achieve the results of Roe without judicial imperialism. The words ''equal protection,'' after all, are in the Constitution. The equal-protection theory, it seems, will please feminists, satisfy strict constructionists and cook dinner for 12. Alas, it doesn't.

In reality, there are two equal-protection arguments. One, advanced by Cass Sunstein in his new book, ''The Partial Constitution, is based on an ''admittedly imperfect'' analogy. Prohibiting abortion, Mr. Sunstein argues, requires women but not men to use their bodies to help vulnerable young beings. For example, men are not required to donate kidneys even when that is the only way to save their children's lives. ''It is akin to a law requiring blacks, but not whites, to [give] blood donations.''

The argument is relatively modest. Mr. Sunstein's objection could arguably be satisfied by equalizing the burden -- by imposing various physical duties (e.g., to donate blood) on fathers as well as mothers.

But Judge Ginsburg doesn't make this argument. She claims that anti-abortion laws violate a woman's ability ''to participate equally in the economic and social life of the Nation.'' Here is a principle with truly immodest implications.

It could be used to argue that abortion must be subsidized by the state as well as permitted (otherwise pregnancy will impose a ''life'' handicap on women who can't afford abortions). It could justify affirmative discrimination designed to compensate women for the extra burden of child-rearing. It could even be used to strike down laws that are non-discriminatory on their face but that don't make allowances for women's reproductive disadvantage. (Is the 40-hour week unconstitutional?)

Would Judge Ginsburg buy these arguments? She strongly implies that she would require government funding of abortions -- hardly the ''moderate'' position. But we don't really know.

Her cautious, case-by-case approach, in this sense, appears less like congenital ''moderation'' than the tactics of a shrewd litigator. Why tip your hand by embracing Principle X in this year's case when it's Principle Y that might win the day for your client in next year's case? Better to plant the ''seeds'' of various expansive doctrines and harvest them later as needed.

By being ''moderate'' today, Judge Ginsburg frees herself to be immoderate tomorrow.

L TRB is a column of The New Republic, written by Mickey Kaus.

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