This episode exposes (again) the extent to which the sectarian creed of Ginsburg-worship is entirely transactional. Its congregants do not value her because she is a consistent champion for a particular legal perspective but as an advocate for a set of political objectives. Ginsburg usually delivers for her admirers, but even she is occasionally obliged to defer to political or legal realities. When she does, she’s branded insufficiently loyal not to the law but her ideology.
In 2017, Ginsburg authored a Court decision striking down a “stunningly anachronistic” law that made it easier for female U.S. citizens abroad to pass American citizenship on to their children than it was for males. “Woke this decision wasn’t,” scolded Harvard Law Professor Noah Feldman. When Ginsburg joined the majority of justices in a 2015 decision that found the controversial shooting of a suspect by a police officer during a dispute was not objectively unreasonable, she was castigated by Slate’s Mark Joseph Stern for displaying a conspicuous “law-and-order streak.” Her refusal to heap praise upon former NFL quarterback Colin Kaepernick for taking a knee during the national anthem earned her the scorn of “intersectional feminists” who assumed Ginsburg subordinated her better judgment to the demands of white racial solidarity. And when the Justice declined to endorse Pete Buttigieg’s plan to pack the court, progressive activists and organizations dismissed her remarks as evidence that she had been cowed into silence.
If there is consistency on display here, it is in the expectation that Ginsburg should (and would, given her druthers) behave as a political operative rather than a dispassionate member of the judiciary.