Justice Ginsburg, demagogue

High-profile public figures like presidents, Supreme Court justices and House speakers receive death threats from time to time. They report them quietly to enable law enforcement to pursue the offenders. The threats are taken quite seriously. But Supreme Court Justice Ruth Bader Ginsburg used one such threat last month in a lecture in South Africa to suggest that her critics on international law were somehow culpable. It can only be interpreted as an attempt to chill critical speech.

In her Feb. 7 address, Mrs. Ginsburg accused people who question her resort to foreign case law of “fuel[ing] the irrational fringe.” She cited a deranged post from an unspecified Web site on Feb. 28, 2005: “Okay commandoes, here is your first patriotic assignment… an easy one. Supreme Court Justices Ginsburg and [Sandra Day] O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom… If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Justice Ginsburg had just cited fellow Justice Antonin Scalia and Judge Richard Posner, a federal appellate-court jurist, as her critics.

Are these two esteemed judges somehow supposed to be responsible for the criminal rantings of a maniac?

This is the same gambit the Clinton administration used in the wake of the 1995 Oklahoma City bombing. Back then, Clintonites tried to link small-government philosophy to the fanatics who killed 168 innocent people in the bombing of the Alfred P. Murrah Federal Building. The two had no relation, but the demagoguery fit.

The whole Ginsburg episode is telling. Justice Ginsburg’s arguments in favor of foreign case law have never been particularly convincing. Perhaps she realizes her advocacy rests on very weak intellectual foundations. We’re not talking British common law here. “Comparativists” think legal precedents from bastions of liberty like Zimbabwe should influence rulings on our constitutional liberties. This is controversial stuff. Justice Ginsburg and her co-opinionists are criticized across the spectrum for this.

Enthusiasts for foreign case law should try using rational arguments to refute their opponents. The demagoguery only suggests what we feared all along: That they have no constitutional basis for their thinking.