On The Passing of Justice Ginsberg

This video is a primer on why the passing of any Supreme Court Justice should not matter this much.

When I heard the news on my way home yesterday, I thought “How very 2020…”. I didn’t think this for any of the reasons that the persons in this video thought so. Let me expand on this…

Unlike several of my friends, I’m not doing a happy dance about Justice Ginsberg’s passing. Her longtime sincere and genuine friendship with Justice Scalia gave me hope for the future of this country, in a world where everything is now political, the two managed to find common ground, and enjoy it together without letting opposing political viewpoints and judicial philosophies make that common ground toxic. I liked what their ability to do so said about the two of them as persons and as individuals, and as I get older, and the ever increasing politicization of everything continues apace, it causes me to resist the pull to go along with this trend. I don’t want to celebrate the death of someone of a different ideological persuasion. This isn’t out of a concern for “civility”, which is too often “”Shut Up.” they said, in a hoodie.” It isn’t a “form” issue. It is because I don’t want to let that kind of hatred and pettiness be internalized by ME. If she was a creation of the same God who made me, I don’t get to regard her that way, without facing judgement from that same God for contempt of his creation.

That said, the secular canonization of Justice Ginsberg that has been a feature of the last decade or so is not a good thing for political discourse or society, and the “statement” she dictated to her granddaughter earlier this summer is a disappointment. As she felt the onrushing of her own immanent mortality, she could have recognized something I have frequently told clients who have agonized over decisions regarding their testamentary directives: “It’s one thing to be thoughtful, but you really shouldn’t torture yourself over these things, because the truth is, you’ll be dead.” Instead of recognizing this, her final word on the subject of her replacement portrayed the kind of thinking which is part of the problem we face today: The idea that the seat she occupied “belongs” to a certain ideological persuasion.

The fact that is lost on everyone, and that will sadly remain so, is that Supreme Court Justices were never supposed to be so “crucial” to everyday Americans, and if they hadn’t strayed into the practice of activism, brazenly usurping legislative authority (and had craven and cowardly legislators who are elected to make hard decisions not let them do so), this wouldn’t be the crisis that too many people see it to be.

I’ve witnessed a variety of reactions to her passing. Respect. Sadness. Unrestrained glee, which I dislike as much as the unhinged despair in the video above, in which people lay bare their understanding, without ever admitting it, that the “rights” they fear losing aren’t really rights at all, but licenses granted by a branch of government that pretended to mystically divine them from penumbras and emanations of actual rights which this government saw fit to guarantee in a “Bill of Rights”, while ignoring the inconsistency of these “rights-cum-licences” with our base jurisprudence and legal philosophy. And like all licenses, they can be revoked by the same government that issued them in the first place.

I could teach a class on how American jurisprudence went tragically wrong. I can cite chapter and verse. I can give real world example after real world example. And it would all come back to the same thing: When judges decided to make law under the pretense of applying what other jurists had never actually “found” in the plain meaning of what had been commited to paper, we started on an inevitable course to where we are today… a place where a Supreme Court vacancy is treated as an existential crisis. I’ll even acknowledge that it might even be one if you subscribe to an ideology which has routinely turned to the courts for decades in order to achieve legislative results that they were unable to achieve by legislative means. Ultimately, the blame for this lies with Congress, as it has enabled them to maintain a lucrative and cushy sinecure by never actually making the tough decisions, despite the fact that doing so falls squarely within their lane, and no other branch of government. Once this is understood, it should become obvious that filling the vacancy left by Justice Ginsberg with another justice of a similar persuasion won’t fix that problem.

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