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Indiana Law Journal

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Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans. This prominent facet of Justice Ginsburg's jurisprudence reached its zenith when she authored the majority opinion in the Court's landmark decision United States v. Virginia, which very nearly puts gender equality on the same strictly protected constitutional footing as racial equality. This aspect of Justice Ginsburg's jurisprudence attracts considerable attention, and it seems likely that it will continue to preoccupy constitutional scholars and Court observers.

I have chosen, instead, to examine Justice Ginsburg's federalism jurisprudence, which suggests that she also might be remembered for complementing the centrist political agenda of the President who nominated her. Justice Ginsburg's progressive gender-equality jurisprudence poses a stark challenge to this claim, a challenge made thornier by the high value President Clinton clearly put on Justice Ginsburg's commitment to the issue. But the usual emphasis given to gender equality in commentary on Justice Ginsburg's work highlights the progressive profiles of the Justice and her President, fueling the persistent but mistaken view that both are orthodox liberals. They are not. This Article advances this claim through a study of the nexus between President Clinton's pro-state federalism policies and Justice Ginsburg's pro-state federalism jurisprudence. As regards federalism, it seems that President Clinton got exactly what he wanted from his first nomination to the Supreme Court: a judicially modest centrist that contributed to his attempt to refashion the Democrats as a party embracing ideas and values that [are] both liberal and conservative.

I begin, in Part I, by arguing that President Clinton's nomination of Justice Ginsburg was not merely a sop to the Democratic Party's liberal base, but was, instead, representative of his centrist political vision. I also explain why Justice Ginsburg's federalism jurisprudence is especially meaningful support for that argument. As I use it here and throughout the Article, the term centrist is meant to capture President Clinton's political theory known as the third way. Then - Governor Clinton explained this vision in his keynote address at the 1991 Cleveland Democratic Leadership Council (DLC) Convention (viewed as the event that certified his presidential bid as legitimate). We have got to have a message that touches everybody, Clinton said, [a message] that makes sense to everybody, that goes beyond the stale orthodoxies of left and right... Ginsburg expressed similar sentiments during the Senate confirmation hearing on her Supreme Court nomination when she explained that my approach, I believe, is neither liberal nor conservative.

I establish the centrist character of President Clinton's and Justice Ginsburg's federalism in Part II, where I also demonstrate the intersection of their approaches with a close examination of their positions on the preemption doctrine. This effort reveals that their distinctly centrist approach to federalism rejects the Democrat's long-standing preference for national authority in the state-federal balance while refusing to simply adopt the customary Republican view that the states and the federal government are mutually exclusive dual sovereigns. They achieve this through a federalism vision that has two characteristics. First, they give force to a variation on the traditionally Republican dual-sovereignty approach to federalism by showing respect for the states' governing autonomy and the state agents empowered to realize that autonomy. Second, they credit Democratic preferences for national policy and standards by viewing the states as intersubjective actors engaged in the pursuit of their interests in the national political process.


Copyright 2010 by the Trustees of Indiana University. Reprinted with permission.



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