Wednesday, April 29, 2015

But while her preference for supporting equal rights in this case was never in doubt, what was striking on Tuesday was how her willingness to place it along the civil rights continuum allowed her to cut through the argument in a way even the court’s conservative firebrands struggled to do.

“Marriage today is not what it was under the common law tradition, under the civil law tradition,” said Ginsburg when Justices Roberts and Kennedy began to fret about whether the court had a right to challenge centuries of tradition.

“Marriage was a relationship of a dominant male to a subordinate female,” she explained. “That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that state should [still] be allowed to have? To cling to marriage the way it once was?”

“No,” replied John Bursch, the somewhat chastised lawyer for the states who are seeking to preserve their ban on gay marriage.

Bursch was similarly eviscerated by Ginsburg when he tried to argue that the sole purpose of marriage was to ensure a stable relationship for procreation.

“Suppose a couple, 70-year-old couple, comes in and they want to get married?” remarked the 82-year-old Ginsburg, to laughter, after a protracted debate over whether it was fair to ask couples if they wanted children before allowing them to wed.

“You don’t have to ask them any questions. You know they are not going to have any children.”
Ruth Bader Ginsburg’s presence on the Supreme Court represents not just the result of intelligence hard work and luck, but the common recognition that there's a need on the court for minds affected, colored [shaped? built?] by the experience of womanhood. Ginsberg's experience is bounded by a thousand other things, but Henry Farrell is not a woman. Perspectives matter. And this is a discussion of experience not biology. If he is admitting something similar now -for the first time?- not in the context of a discussion of representative democracy and the Supreme Court but Twitter, what does this say about the underlying logic of his interests? I'm pretty sure he wouldn't argue that female judges are only a political necessity. I assume he's just too self-absorbed to see the crossover, but who knows.
And another, since someone found it today.

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