Some people say that the 1970s were a trivial interim between the Glorious Youth Revolution of the 1960s and Reagan’s triumphant Morning in America election. I’ve always said this underrates the Seventies (even just for the social advances in ‘women’s lib’ and ‘gay pride’, which were not trivial even for those of us not female or LBGT). Then again, the degradation of American political culture by the self-styled Moral Majority in th Eighties remains, IMO, second only to the Reconstruction in its awfulness. So I was intrigued by Dahlia Lithwick’s latest:
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….
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.….