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Judge Ginsburg’s Centrist Role: Opinion Piece by W&L’s Russell Miller in Roanoke Times

Judge Ginsburg’s Centrist Role
Russell A. Miller
Associate Professor of Law, Washington and Lee University

Speculation about Supreme Court Justice Ruth Bader Ginsburg’s retirement may be premature. But it is not too soon to reflect on her surprisingly centrist contribution to American constitutional law.

Ginsburg’s recent brush with pancreatic cancer, at age 76, and the fact that Democrat Barack Obama would nominate her replacement have fueled the retirement intrigue. She has been upbeat about her health and returned to the Supreme Court after surgery to ask the first questions in the first oral argument of 2009. Yet Ginsburg herself recently fanned the retirement rumors by suggesting that the court might soon have to sit for a new group photograph, implying a new appointee.

What will be Ginsburg’s legacy?

Ginsburg is best known for her long campaign to promote gender equality. President Bill Clinton, announcing her nomination to the court, declared, “She is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African Americans.”

Her jurisprudence on equality reached its peak when she authored the majority opinion in the court’s landmark decision United States v. Virginia. This decision ended the Virginia Military Institute’s male-only policy by very nearly putting gender equality on the same, strictly protected, constitutional footing as racial equality.

Her interpretation of the Constitution on this issue has aroused conservative criticism and perpetuated the mistaken view that she is an orthodox liberal. She is not.

Ginsburg is a self-declared judicially modest centrist. During her Senate confirmation hearings, she said, “My approach, I believe, is neither liberal nor conservative.” Her record after 13 years as a judge on the D.C. Court of Appeals clearly demonstrated this — she voted most frequently with none other than Judge Kenneth W. Starr.

This centrist approach also has been evident during her time on the Supreme Court. Ginsburg has preferred that Congress, state legislatures and state courts, not the federal courts, make the law. But when federal courts must act, she has favored an incremental approach, a view she invoked in scholarly criticism of the far-reaching changes that resulted from the Supreme Court’s controversial decision in Roe v. Wade.

Ginsburg also has taken moderate positions on a number of issues from crime to business.

However, it is her commitment to state autonomy that poses the most dramatic challenge to the criticism of conservative commentators, who vilify her as one of the court’s most consistently liberal and activist justices.

For example, Ginsburg wrote the lone dissent in last term’s case Riegel v. Medtronic. She argued that at stake were “the historic police powers of the states,” the precarious “federal-state balance” and the special respect owed by the federal government to “state action in fields of traditional state regulation.” Ginsburg refused to support enfeebling state autonomy in Riegel as she regularly has done throughout her tenure on the court.

Ginsburg’s surprising centrism with respect to the balance between the role of the federal government and state autonomy is an integral part of her constitutional jurisprudence.

I hope we can look forward to many more years with Ginsburg on the Supreme Court. We will be lucky to have her surprisingly centrist voice as part of our national debate — something for which the states in particular can take comfort.

(This piece was originally published in the Roanoke Times.)