Ruth Bader Ginsberg and the myth of objectivity

To revere objectivity is to be American. The myth of objectivity is born from the reality of empire. Only a country whose formidable and terrible abundance changed the outcomes of two world wars, removed heads of state from Iran and Guatemala to Congo and Iraq could value the solidity of facts, any set of facts however blinkered. Objectivity is the hegemon’s bloodless sword, swung when the victim or the suspect — how hard to distinguish them — can speak his peace. In France and England, who once ruled most of the globe between them, the notion of an objective press is a curiosity, tolerated from their American cousins; they wanted their subjects to know that judgment was inexorable, unmoored from justice. Only in America do we confuse objectivity with fairness.

Today the Beltway class has collapsed in a faint over remarks made by Ruth Bader Ginsberg, appointed by Bill Clinton in 1993 and by any definition the most consistent liberal Supreme Court justice of her generation (Sonia Sotomayor, according to scholars, recently overtook her, but her tenure is shorter). Donald Trump, she said, “is a faker.” To the AP she said other things calculated to piss off Trump. Apparently the octogenarian is a truculent mood, and reporters pumped her for more juice. Because Americans and especially the American political reporting class worship objectivity and confuse it with fairness, it has recast the Supreme Court building as Olympus, from which its nine gods deliver opinions as cold and hard as its marble facade. A presidential candidate may imply that John McCain is a coward and openly insult the looks of women and call Mexicans rapists and murderers, but the Supreme Court is supposed to be Beyond This.

Another myth. From the earliest days of the Republic through the present day, the Supreme Court has boasted dimwits, hacks, and cronies. Why? Presidents appoint them: in gratitude for service rendered in campaigns, the fulfilling of debts, or the exiling of rival claimants to the Oval Office. William Howard Taft and Dwight Eisenhower did try to reach beyond party; they and a few others are exceptions. Ginsberg’s remarks were intended to wound. She is no fool. She didn’t give a damn about objectivity. We live in a system that offered Roscoe Conkling a seat on that court. Two of Abraham Lincoln’s appointees, Stephen Field and Chief Justice Salmon Chase, growled on the sidelines waiting for their parties to extend them the presidential nomination — growled for years. Richard Nixon nominated a man whose purpose was to serve as a middle finger to the Senate; his jurisprudence was at best colorless and at worst white supremacist garbage.

At any rate, here are examples from our history of objectivity.

1896:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

1927:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes….Three generations of imbeciles are enough.

And that masterpiece of objectivity, released in 1857. It stopped a civil war:

[The Negroes] had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race.

A woman with biases and an appetite for sympathetic audiences, Ginsberg has spoken at liberal gatherings. Samuel Alito has addressed the Federalist Society. Clarence Thomas married a woman who dressed like this. Louis Brandeis counseled FDR and Wilson. Potter Stewart played tennis with George H.W. Bush. Harlan Fiske Stone tossed a medicine ball around with Herbert Hoover in what I can imagine was the gayest of gay times. Appointed by politicians and given lifetime sinecures, endowed with oracular powers beyond their educations and often their temperaments, Supreme Court justices are politicians too.

Finally, only men and women who think Bush v. Gore should have been heard by the Rehnquist Court think Ginsberg despoiled the sanctity of her robes.

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