Jim Lindgren at the Volokh Conspiracy provides a thoughtful, well-reasoned response to my suggestion that there now exists a case for impeaching Justice Ginsburg based on the use she wants to make and/or is making of foreign law in constitutional adjudication. Lindgren concludes: “I don’t know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg’s to form a plausible basis for impeachment.”
As Lindgren notes, I’m not advocating that Ginsburg be impeached — I haven’t studied the matter enough to know whether the case for impeachment is ultimately persuasive and, in any event, any such attempt would be futile. Thus, the issue is an academic one, as far as I’m concerned. But since I raised the matter without really explaining myself, let me respond to some of what Lindgren and his colleagues Steve Calabresi and Stephanie Zimdah say about the matter.
First, I agree that when the constitution frames the issue in terms of whether something is “reasonable” or “unusual” it is not beyond the pale to look at foreign practice. Second, I agree that citation to foreign law “is least justifiable” (but I would say “not justifiable”) “when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States.”
Third, I think that Lindgren, Calabresi, and Zimdah may not fully appreciate the project that Justices Ginsburg and Breyer have embarked on through their reliance on foreign law. As I argued here (relying on an unpublished paper by Jeremy Rabkin) the Supreme Court’s recent use of foreign law
is founded on the notion that history is a progress towards an absolute (and therefore geographically universal) idea, and that the Supreme Court’s task is to discern and give voice to the contours of that idea, wherever they are revealed, and regardless of what [the] Framers may have written or intended.
Justice Ginsburg has argued that Framers’ stated general intent to form a more perfect union provides a basis for using foreign law to override (as outdated) fixed principles that the Framers thought would make the union more perfect. She has also advanced the need to improve the United States’ world image as a basis for looking to foreign law. Although I haven’t surveyed the history of Supreme Court reliance on foreign law as Calebresi and Zimdah have, I suspect that these justifications for applying foreign law are unusual. They are certainly subversive.
Finally, can a judge ever be impeached for holding a bad judicial philosophy? I think the answer must be yes. A judicial philosophy holding that the law should be the opposite of what the Constitution says would merit impeachment. So would a judicial philosophy to the effect that the words of the Constitution are not binding in constitutional adjudication.
Ginsburg does not hold the first of these lawless philosophies and has never expressed the second. But, as we have seen, she does appear to believe that 21st century “global” opinion can be as or more useful in constitutional adjudication than the 18th century opinions that were written into the document itself. And she also seems to think that the desire to curry favor with foreigners is a legitimate factor in constitutional adjudication. These views strike me as essentially lawless and highly unusual.
So yes, to the extent that Justice Ginsburg holds these views and allows them to enter into her decisions I think there is a case for impeachment.