Methinks Ginsburg Doth Protest Too Much

Stephanie By Stephanie Herman
Rightgrrl Co-Founder
December 3, 2000
One of the most intriguing moments from Friday’s Supreme Court oral arguments involved a question posed by Justice Ruth Bader Ginsburg. Following up on her criticism of the Bush legal team for impugning a state supreme court to a degree she claims to have never before witnessed, Justice Ginsburg asked Bush’s attorney, “Mr. Olson, would you agree that, when we read a state court decision, we should read it in the light most favorable to the integrity of the state Supreme Court?”

This question juxtaposes two conflicting beliefs regarding the nature of our federalist system of government. On one hand, we believe it’s necessary that the American people have a certain “faith” in their government and the laws we must honor if our society is to remain civil. On the other hand, we’ re taught to question and petition our government when conflicts arise. America is a nation of skeptics.

Initially, I was tempted to answer Ginsburg’s question, Yes. It speaks to the notion of obeying laws you may not agree with. It speaks to the notion of taking grievances to a court of law rather than to a violent or vigilante form of resolution. It speaks to the notion of our military’s loyalty to the Commander in Chief, despite ideological differences. It speaks to the implicit honor that underpins any social contract.

To view a court action in its most favorable light, moreover, is a basic tenet of our legal system. The interpretation of law is so open-ended that variant court findings may not necessarily be attributable to partisanship or bad motives; they can also be due to simple disagreements over the meaning of a statute. For this reason, Ginsburg’s comments were reasonable. But, remember: our leaders need our consent. So how might a corrupt political faction go about circumventing the checks and balances of our government? They would first ask – no, they’d demand our faith in their judgment.

It's our federalist checks and balances that warn us against blindly following the judgment of our leaders. If we see a conflict, or a mistake, or a lack of integrity in the motives or actions of our leaders, it’s our responsibility as citizens, not to mention our Constitutional right, to petition those concerns directly to our government.

So if the Florida Supreme Court made an error in interpreting Florida law, why shouldn’t they be impugned in a legal argument? Isn't the freedom to impugn a court implicit, even encouraged, in our system? And why on Earth is an error – regardless of motive – deserving of our respect?

Granted, Justice Ginsburg may not view the Florida Supreme Court ruling as an error. But she does suggest that for those of us who do, we must still maintain a full faith in the integrity of a potentially erroneous panel of judges. In fact, she continued her exchange with Mr. Olson by saying, “That if there are two possible readings, one that would impute to that court injudicial behavior, lack of integrity, indeed, dishonesty, and the other that would read the opinion to say we think this court is attempting to construe the state law but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are?” Again, a reasonable demand on its face.

Oral arguments before the Supreme Court take place not for the benefit of the attorneys, but largely to give the Justices an opportunity to convince one another of their positions. For Ginsburg to emphasize this most obvious legal tenet of giving state courts benefit of the doubt when there are “two possible readings” hardly seems necessary. Her defense of the motives of the Florida Supreme Court is so strenuous, in fact, that it becomes potentially telling. Doubt must be prominent when “benefit of the doubt” is hammered so hard.

We know, of course, that doubt surrounding the motives of the Florida Supreme Court is prevalent among American citizens at large, but could it also be an issue behind chamber doors? The repetition and harshness of Ginsburg’s admonition of the Bush legal team leaves some court watchers to wonder if perhaps she doth protest too much.

This article copyright © 2000 by Stephanie Herman and may not be reproduced in any form without the express written consent of its author. All rights reserved.