Anyone holding out hope that the Supreme Court is going to issue a sweeping decision to legalize gay marriage inroughout all 50 states has a new reason to temper their expectations. Not even the court’s most liberal member appears to be all that eager to thrust the institution into another cultural fight. It’s not so much because she does not believe in advancing rights, but rather because she appears to have concluded that judicial modesty is, in some circumstances, the best way to advance those rights.
The justice I am talking about is Ruth Bader Ginsburg. In a talk at the University of Chicago on the 40th anniversary of the holding in Roe v. Wade, Justice Ginsberg reflected upon the scope of the Roe holding, and not in a way that suggests that she would do it the same way if she had it to do over again. “Roe became a symbol for the right to life movement. They have an annual parade now every year on the day in January when it was decided.”
As her statement this weekend suggests (and as Supreme Court watchers know, you can never read too much into what is said at oral argument or in public remarks), Justice Ginsburg appears to believe that Roe caused a cultural backlash against a woman’s right to choose that would never have occurred had the court not intervened so aggressively. Instead, Justice Ginsburg appears to have concluded, like many others of all sorts of ideological makeups who have studied the case, that had the court been more modest, a societal consensus would have emerged and the same rights would have come to be enshrined in the laws of each state through more democratic means.