Why elections matter.

In February of this year Justice Ruth Bader Ginsberg delivered a speech in South Africa entitled, "A decent Respect to the Opinions of [Human]kind". Here is an excerpt:

South Africa’s 1996 Constitution famously provides in Section 39: “When interpreting the Bill of Rights, a court . . . must consider international law; and may consider foreign law.” Other modern Constitutions have similar provisions, India’s and Spain’s, for example. In the United States the question whether and when courts may seek enlightenment from the laws and decisions of other nations has provoked heated debate. I will speak of that controversy in these remarks. At the outset, I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. – now engaged in measuring ordinary laws and executive actions against charters securing basic rights.

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Representative of the perspective I share with four of my current colleagues, Patricia M. Wald, once Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Judge on the International Criminal Tribunal for the former Yugoslavia, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."

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To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."

It is clear from Justice Ginsberg’s remarks that she has little or no understanding of the Supreme Court’s proper role. It is the job of the court to interpret the constitution in the light of what those who wrote and ratified the document intended. If James Madison meant “X” then “X” is what it means today. If the American people wish the law to be other than “X” they must amend the constitution through the process set forth in the document.

If a Supreme Court Justice wishes the law to be other than “X” then she must take off her robe and run for elective office or become an activist and attempt to convince enough others to see things her way to bring about change.

It is appropriate for legislators to look anywhere they feel that they need to for inspiration. Their job is to craft legislation and they are accountable to the people for how well they do their jobs. An American judge, on the other hand, must look to the laws of the United States alone.

It is clear that Ms. Ginsberg wants to be a law maker not a judge. In that case she should retire from the bench and seek election to the Senate or House of Representatives. I doubt that will happen, however. In her view she is already a member of a panel of Exalted God Kings.