The Magazine

Team Clinton on the Supreme Court

The real record of Ruth Bader Ginsburg and Stephen Breyer, President Clinton's liberal judicial appointees

Oct 11, 1999, Vol. 5, No. 04 • By ANDREW PEYTON THOMAS
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The ideological fog that often blurs coverage of the judiciary seems particularly thick as the Supreme Court convenes this week for a new term. The press routinely describes Ruth Bader Ginsburg and Stephen G. Breyer, Bill Clinton's two nominees to the Court, as "centrist," or "moderate." In newspaper accounts, the word "pragmatic" follows their names as if it were an honorific.

Yet only someone at the far left end of the spectrum can honestly view the jurisprudence of Justices Ginsburg and Breyer as "moderate" or "centrist." It is true that the two Clinton appointees are not activists on the order of the late William Brennan and Thurgood Marshall, but that does not make Team Clinton "moderate" or "centrist." By such lights, Franklin Roosevelt would qualify as a conservative.

Since Ginsburg and Breyer joined the Court in 1993 and 1994, they have, almost without exception, come down on the liberal side of major constitutional disputes. Their opinions rely heavily on dry quotations from case law, a common Warren Court device. But their pedestrian prose belies a quietly persistent activism that is distinctly liberal and without any New Democrat qualifications. Particularly in regard to criminals' rights, Ginsburg and Breyer are greatly out of step with the poll-driven politics of the man who appointed them. The liberal "quartet" of which they are leading members has handed down many opinions that make for timely reminders that the 2000 presidential election is crucial to the rule of law. The next president will probably make at least a couple of Supreme Court appointments. If Clinton's are any guide, another Democratic president would give liberal activists on the bench a working majority.

Issues of federalism are a helpful starting point for gauging the politics of Ginsburg and Breyer. Both justices favor greater power for the federal government and a correspondingly diminished role for the states. They dissented, for example, in United States v. Lopez (1995), the landmark case in which the Court struck down the Gun-Free School Zones Act as exceeding Congress's authority to regulate under the Commerce Clause. Lopez reversed 60 years of unchecked federal self-aggrandizement at the expense of the states. In Breyer's dissent, which Ginsburg joined, they firmly distanced themselves from the Court's majority.

Similarly, in Printz v. United States (1997), Ginsburg and Breyer, along with Stevens and Souter, dissented from the majority's ruling against the Brady handgun law's requirement that local law enforcement officers perform -- free of charge to the federal government -- background checks on prospective handgun buyers. In his dissent, Breyer sought guidance on the proper constitutional order not from the intentions of the Framers, but from the "federal systems of Switzerland, Germany, and the European Union." (He did, however, note conscientiously that Madison and Hamilton explicitly "reject[ed] certain aspects of European federalism.")

Clinton's justices likewise have been reliable warriors for various social causes espoused by liberals. In Washington v. Glucksberg and Vacco v. Quill (1997), the Court upheld state laws in Washington and New York prohibiting assisted suicide. Ginsburg, however, joined Justice O'Connor's separate concurring opinion, which left open the possibility of recognizing a constitutional right to assisted suicide in the future. In another separate and concurring opinion, Breyer talked of a "right to die with dignity." Ginsburg and Breyer joined the majority in Romer v. Evans, which declared unconstitutional a voter-approved amendment to Colorado's constitution that prohibited special anti-discrimination laws for homosexuals.

Ginsburg and Breyer have been much less solicitous of the rights of religious minorities. Ginsburg was part of the majority in Board of Education of Kiryas Foel v. Grumet (1994), which declared unconstitutional New York's creation of a single school district to serve an enclave of Hasidic Jews. In Agostini v. Felton (1997), the Court showed more favor toward religious freedom, causing Ginsburg and Breyer to dissent. The Agostini decision overturned a 12-year-old ruling in Aguilar v. Felton (1985), which forbade New York City from sending public school teachers into parochial schools to provide remedial education to disadvantaged children. Ginsburg's dissent, joined by Breyer, Stevens, and Souter, was unusually pointed by her normally staid standards. She accused the majority of not abiding by the Court's "non-agenda-setting character" -- a curious remark given her liberal activism on so many other issues.