In truth, Judge Ginsburg’s critique of Roe v. Wade is troubling, not because it is not in the mainstream of modern constitutional thought — it is — but because its extraordinary reliance on modern equal‐protection jurisprudence places it squarely at odds with the thinking of those who wrote and ratified the Constitution. By virtue of her modern approach, therefore, Judge Ginsburg is likely to sail right through the confirmation process without anything like the scrutiny she deserves — and we will all be the poorer for it.
More than once Judge Ginsburg has made plain her view that a woman has a right to an abortion, even if the judge has not made plain precisely where that right is to be found in the Constitution. But her Madison Lecture is more a critique of the court’s reasoning than of its result. Thus, it can be criticized on its own terms, without reaching the abortion issue itself.
A Bow to Holmes
Judge Ginsburg begins her critique by associating herself with Justice Oliver Wendell Holmes’s admonition, straight out of the Progressive Era, that “judges play an interdependent part in our democracy,” participating “in a dialogue with other organs of government, and with the people as well.”
Thus dissociating herself, in this Madison Lecture, from the Madisonian view that judges are to stand as “independent tribunals of justice,” as “an impenetrable bulwark against every assumption of power in the Legislative or Executive,” Judge Ginsburg reflects instead Mr. Clinton’s view that “we’re all in this together.” At the least, the image is closer to “good government” than to the separation of powers.
Continuing in this Holmesian vein, she says that judges “do and must legislate,” although she cautions (again following Holmes) that they can do so “only interstitially.” Thus she establishes herself as a “judicial activist,” although one limited to “interstitial” activism. She is now nicely positioned to criticize the court’s “breathtaking” decision in Roe, which she contrasts with its “more cautious dispositions” involving “explicitly sex‐based classifications.”
Judge Ginsburg is concerned that “doctrinal shifts too swiftly shaped … may prove unstable.” Indeed, the Roe decision “displaced virtually every state law then in place,” generating “a well‐organized and vocal right‐to‐life movement [that] rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.” A more “measured” decision, she believes, one not “blanketing the subject” but simply overturning the Texas statute that had criminalized all but life‐saving abortions, might have spared the nation its 20‐year controversy.
Moderate as that reasoning may sound, it is driven by an all but uncritical application of the equal‐protection clause of the 14th Amendment and the equal‐protection guarantee implicit in the Fifth Amendment’s due‐process clause — the jurisprudential analogue of an egalitarianism that has dominated the politics of the 20th century.
Thus, Judge Ginsburg argues that “the Roe decision might have been less a storm center had it both homed in more precisely on the women’s equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decision‐making the Court employed in the 1970s gender‐classification cases.”
By way of example, Judge Ginsburg turns to a case, later declared moot, that was on the court’s calendar the very term Roe was decided, “a case that could have served as a bridge, linking reproductive choice to disadvantageous treatment of women on the basis of their sex.”
The case involved an Air Force captain who had brought suit when the service discharged her after she became pregnant while stationed in Vietnam. Pointing to the equal‐protection guarantee implicit in the Fifth Amendment, the plaintiff argued that the Air Force rule “differentiated invidiously by allowing males who became fathers, but not females who became mothers, to remain in service.”
Judge Ginsburg suggests that, had the court heard the case with “a female presence” in its ranks, it might have “comprehended an argument, or at least glimpsed a reality, it later resisted: that disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination because of sex.”
The argument (or “reality”) that Judge Ginsburg here advances is of course a classic non sequitur. Disadvantageous treatment of a woman because of her pregnancy is treatment based, as the proposition states, on her pregnancy, not her sex. Otherwise every woman would be so treated, which not even Judge Ginsburg asserts.
It is true, of course, that only women become pregnant. But from that fact it no more follows that pregnancy discrimination is sex discrimination than that punishment for having committed a crime is punishment for being a person — it being a fact also that only people commit crimes. Ironically, Judge Ginsburg’s contention would compel her to the conclusion that preventing a woman from having an abortion in the ninth month of pregnancy amounts to prohibited sex discrimination. Not even Roe reached that result.
In attempting to recast the abortion debate as a discrimination debate, Judge Ginsburg has made a move by now all too familiar in American legal thought. Indeed, as we near century’s end we are fairly awash in the kind of equal‐protection jurisprudence on which she has made her career. Such jurisprudence exacerbates the class tensions that are just below the surface in any society and distracts us from the substantive moral and legal analysis that is essential to serious legal thought.
To take the issue at hand, the abortion question turns not on whether any prohibition of abortion amounts to gender‐based discrimination, as Judge Ginsburg would have it, but on the question of whether a fetus is to be counted a person and, more precisely, a person with rights. Judge Ginsburg’s discrimination inquiry may be an interesting sidebar, but it is not the heart of the matter.
Equality of What?
Why, then, have we been so distracted into this equal‐protection channel? Part of the reason is historical: The legacy of both Jim Crow and official discrimination against women has directed our attention to issues of equality. But equality alone will not address such problems. Equality of what? Indeed, as more thoughtful analysts have long known, equal‐protection analysis alone is vacuous. It can justify anything — and nothing.
What is needed is a return to the kind of first principles — substantive principles — that characterized our founding debates. Life, liberty, property and contract were the bedrock of those principles. Yet over the past 200 years we have lost sight of much of that, preferring instead to put our faith in public programs rather than private efforts — nowhere more so than during the Progressive Era, from which so much of this equal‐protection jurisprudence stems.
The result has been ever‐expanding government, which is precisely what a constitution is meant to prevent. Yet our Constitution today cannot do that, because we have stripped it of its essential, substantive force — especially in the case of economic liberty — substituting such contortions as modern equal‐protection jurisprudence. That is the legacy that Judge Ginsburg, and the Senate confirmation committee, must now confront.