Whelan on Alito and Ginsburg
Former Scalia clerk Ed Whelan compares Judge Alito's 1985 statements and the views of Justice Ginsburg. He takes the NYT to task for their weak editorial that slammed Alito. Whelan points out...
Whelan also acknowledges the loopy view of precedent that the NYT took and applies it to Ginsburg...
Back here in reality, cases can be overturned at any time. A judge who wouldn't overturn a case that he or she believed was decided wrong would be violating their oath to defend the Constitution. What better defense could a judge mount than overturning a case that perverted or distorted the Constitution? That's their job. As Chief Justice Roberts said in his confirmation hearings, "If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution." It's the Constitution, not the public policy considerations, that Justices should be concerned with.
By contrast, 18 years before President Clinton nominated her to the Supreme Court, Ruth Bader Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. She proposed abolishing Mother's Day and Father's Day and replacing them with an androgynous Parent's Day. She criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles. And (my favorite) she urged that prisons be co-ed rather than single sex.I wonder if there was a NYT editorial ripping Ginsburg for being outside of the mainstream or an ideologue. I doubt it.
Whelan also acknowledges the loopy view of precedent that the NYT took and applies it to Ginsburg...
As her vote in Lawrence v. Texas shows, Ginsburg does not hesitate to overrule precedent that she disagrees with.See, the NYT is okay with that though. The precedent of Bowers didn't need to be followed because they don't agree with Bowers. That's how you decide if a case can be overturned: ask the NYT editorial board what policy they want.
Back here in reality, cases can be overturned at any time. A judge who wouldn't overturn a case that he or she believed was decided wrong would be violating their oath to defend the Constitution. What better defense could a judge mount than overturning a case that perverted or distorted the Constitution? That's their job. As Chief Justice Roberts said in his confirmation hearings, "If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution." It's the Constitution, not the public policy considerations, that Justices should be concerned with.
