Ginsburg: Does Scalia Think
Like Roger Taney?
by Edward Spannaus
Associate Supreme Court Justice Ruth Bader Ginsburg carried on the public dispute within the U.S. Supreme Court—and pointedly censured Associate Justice Antonin Scalia—in a speech delivered April 1 to the American Society on International Law, in Washington, D.C. Increasingly, Supreme Court Justices, including Scalia, are speaking publicly outside of the court, on their policy differences, especially in regard to the heated debate over the recognition of international law and court decisions from other countries.
This flared up in the court's 2002 decision which held that the execution of a mentally retarded offender was unconstitutional, and in the decision last month, which declared the juvenile death penalty unconstitutional. In both rulings, the court's majority—over Scalia's scornful dissents—cited the near-universal condemnation of these practices.
In her speech, Ginsburg harked back to the Declaration of Independence's "decent respect for the opinions of mankind," to the Framers of the U.S. Constitution who incorporated the Law of Nations into U.S. law, and to statements by early Chief Justices John Jay and John Marshall. From there, she observed that, "There are generations-old and still persistent discordant views on recourse to the opinions of mankind," citing an at-that-point-unnamed mid-19th Century U.S. Chief Justice who had expressed opposition to taking such considerations into account. Ginsburg then quoted this 19th Century Chief Justice saying: "No one, we presume, supposes that any change in public opinion or feeling in the civilized nations of Europe, or in this country, should induce the U.S. Supreme Court to give the words of the Constitution a more liberal construction than they were intended to bear when the instrument was framed and adopted."
"Those words were penned in 1857," Ginsburg continued. "They appear in Chief Justice Roger Taney's opinion for a divided court in Dred Scott v. Sanford, an opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage...."
From there, Ginsburg pointed out that there still remains, today, among some jurists, "considerable skepticism on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights," and some "downright opposition," at which point Ginsburg cited Scalia's dissenting opinion in the juvenile death-penalty case, which declared that the court should 'cease putting forth foreigners' views as part of the reasoned basis of its decisions.' "
Justice Ginsburg is someone who obviously chooses her words very carefully, and therefore, despite her reported personal friendship with Scalia—whose self-professed "originalism" and "textualism" sounds identical to Taney—the significance of her juxtaposition is hard to miss.
The 'H' Word
Justice Ginsburg also touched on another highly disputed issue, the question of the scope of Executive power, in citing the 1952 Steel Seizure case—which the U.S. Supreme Court cited in its rulings against the Bush Administration in the enemy combatant cases last June. The "torture memos" coming out of the Justice Department and the White House in 2002-03, had asserted that the President could use his Executive authority to override treaties and U.S. law in time of war.
Ginsburg cited the fact that Justice Robert Jackson (earlier the chief prosecutor for the United States at Nuremberg), had "pointed to features of the Weimar constitution in Germany that allowed Adolf Hitler to assume dictatorial powers." Jackson drew from this, she said, "support for the conclusion that, without more specific Congressional authorization, the U.S. President could not seize private property, even in aid of a war effort."
This is what Jackson wrote, in his concurring opinion in the Youngstown Steel case:
"Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenburg to suspend all such rights, and they were never restored."
One just need recall how Senator Robert Byrd was recently castigated, in a speech attacking the unconstitutionality of the Frist-Cheney "nuclear option" to end extended debate in the Senate, when he, in similar fashion, identified the manner in which Hitler had used the cloak of legality and majority rule, to establish dictatorial rule.