Justice Ginsburg, RIP

Justice Ruth Bader Ginsburg died today at the age of 87. Nina Totenberg has this report at NPR. Justice Ginsburg often disagreed with CJLF’s positions and had a different philosophy of the proper way to interpret the Constitution. Even so, we respected the fact that she had a principled approach to judging, not merely voting for the argument that produced the result favored by those of a given ideology.

In some cases, it was possible to win her vote for the prosecution side with a principled argument, sometimes even the deciding vote.

My favorite example was Montana v. Egelhoff. The case involved an odd statute that declared evidence of voluntary intoxication inadmissible in a case where the defendant, on trial for murder, claimed he was too drunk to have formed the required mental state. The Court’s division scrambled the usual ideological lines. Four Justices joined Justice Scalia’s opinion that the state could make such a rule of evidence. Four joined Justice O’Connor’s opinion that this violated due process.

Justice Ginsburg cast the deciding vote to uphold the conviction. This was not really a rule of evidence at all, she said. The state had actually made a rule of substantive law altering the mens rea requirement. It decided that voluntary intoxication is not mitigating and should not get a criminal off for a crime he would have been convicted of if he had committed it while sober. Such a rule of substantive law was well within the authority of the state legislature to make. That approach is consistent with the principles that statutes should be upheld if they can reasonably be given a constitutional interpretation and that determining the elements of crimes is, with rare exceptions, for the legislature and not the judiciary to decide. That was also CJLF’s position.

Filling the seat will be a fierce political battle. But we can think about that tomorrow. Today let us pay our respects to a principled and able jurist.