“Take my ribs, Ruth Bader Ginsburg.” This is how many across the nation have responded to the news that the longtime Supreme Court justice fell in her office Wednesday evening, breaking three ribs. Others have been less charitable.
Justice Ginsburg is a metaphor for American culture. How you reacted to the news of her accident likely reveals your position on today’s highly partisan political spectrum.
“A flaming feminist litigator”
Justice Ginsburg was one of nine women in her class at Harvard Law School. She was the first woman to become a tenured professor at Columbia University Law School and the co-founder of the Women’s Rights Project at the ACLU. As the leader of this project, she successfully argued six landmark cases before the Supreme Court.
President Clinton nominated her to the Supreme Court in 1993; the Senate confirmed her by a ninety-six to three vote. Since that time, she has gained a reputation for personal fortitude. She has yet to miss a day of oral arguments, even while undergoing chemotherapy for pancreatic cancer, recovering from surgery for colon cancer, and grieving the death of her husband in 2010.
Ginsburg has become a “liberal icon” who describes herself as “a flaming feminist litigator.” Her criticism of Donald Trump during the presidential campaign drew applause from his critics and censure from his supporters.
One of the gravest challenges we face
It is tempting to view today’s polarization of the Supreme Court as a necessary reflection of the polarization of our nation. Since we are divided between “red” and “blue” states, rural and urban, liberals and conservatives, it seems fitting that our justices reflect such division. And it seems appropriate that the president should be able to make judicial nominations consistent with his political position since he was elected by the will of the people.
As a very strong pro-life supporter, you might expect me to defend this position since it led to the recent appointments of two conservative justices. But I do not.
In fact, I consider the politicization of the Supreme Court to be one of the gravest challenges our democracy faces.
Unlike every other democracy in the world, America’s federal and Supreme Court justices are given lifetime appointments. Alexander Hamilton, in The Federalist Papers: No. 78, explained the founders’ reasoning. Defending “the permanent tenure of judicial offices,” he stated that “nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”
In other words, lifetime appointments are intended to protect the justices from the vagaries of shifting political agendas. This provision has been heavily criticized over the years by those who believe it makes the justices less accountable to the people.
But such accountability is precisely what the founders did not intend.
Decisions that would have shocked the Founders
As I noted yesterday, our foundational declaration that “all men are created equal” was articulated within a Judeo-Christian worldview. This worldview embraces a consensual morality grounded in the realities of absolute truth and objective morality. This commitment to objective truth applies to the US Constitution, a document which I believe its authors intended to be interpreted and applied objectively.
They made provision for amendments as needed but would be shocked to see it treated as a “living document” that can be interpreted and applied according to the changing political and moral beliefs of the day. But this is just how some of our Supreme Court justices view the Constitution.
This approach enabled them to discover a “right to privacy” within the Fourteenth Amendment that they utilized to legalize abortion and same-sex marriage. It is inconceivable to me that the founders would have intended such “rights.” I am not alone in this conviction.
In his dissent on the Obergefell decision legalizing same-sex marriage, Chief Justice Roberts stated: “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.” He suggested to those celebrating the majority’s decision, “Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Justice Thomas agreed: “The majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.”
“Sojourners and exiles”
I believe that our Founders intended our judges and justices to interpret and apply the Constitution according to its original intent (a position known as “originalism”).
I am therefore convinced that Roe v. Wade was a grave error, not just because life begins at conception, but because the ruling was based on a flawed “right to privacy” and should be overturned on its legal merits. (See this excellent article by Christianity Today‘s Matt Reynolds for more.) I believe the same is true for Obergefell‘s discovery of a “right” to same-sex marriage.
But since I am not a lawyer but a theologian, I suspect that you are reading this Daily Article not for my legal opinions but for biblical commentary. What I have written to this point is but a long introduction to this fact: this culture is not our home.
In a day when judicial rulings and conventional wisdom are based more on political and personal opinions than objective morality, we can expect cultural chaos to continue. Religious liberty will be protected in some rulings and assailed in others. Biblical values will likely come under escalating opposition as the post-Christian trajectory of our day continues.
“Sojourners and exiles” in this world are to “keep your conduct among the Gentiles honorable, so that when they speak against you as evildoers, they may see your good deeds and glorify God on the day of visitation” (1 Peter 2:11-12). When that day comes, we will be judged not by Supreme Court justices who are fallen like us but by the Supreme Judge of the universe (2 Corinthians 5:10).
Ruth Bader Ginsburg’s fall reminds us of her mortality, and of ours as well.
Are you prepared to meet your Lord?
For more from the Denison Forum, please visit www.denisonforum.org.
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Publication Date: November 9, 2018
Photo Courtesy: Getty Images/Alex Wong/Staff