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Justice Ginsburg, the Holocaust, and Judicial Review:

In a recent speech justifying citation of foreign law, Justice Ruth Bader Ginsburg claims that judicial review spread in Europe because of the experience of the Holocaust:

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Ginsburg's argument is extremely dubious. As co-blogger David Bernstein points out, there is little if any evidence that the Holocaust influenced the adoption of judicial review in Europe. Some European democracies already had judicial review even before World War II. And the Holocaust was not carried out by "popularly elected representatives," but by a Nazi dictatorship. German public opinion in the 1930s was highly anti-Semitic; but there is no reason to believe that a Holocaust would have occurred absent the rise of a nondemocratic totalitarian state. Indeed, German Jews enjoyed legal equality under the democratic government of the Weimar Republic (though there was of course a great deal of informal public and private discrimination against them). Democracy has many serious flaws, some of which I have analyzed in my own scholarship. Indeed, I am probably much more skeptical about democracy overall than Justice Ginsburg is. But no democratic government has ever committed mass murder or genocide against its own citizens.

Perhaps Justice Ginsburg merely meant to say that judicial review was needed to prevent democracy from being replaced by a dictatorship, which in turn could go on to commit atrocities similar to the Holocaust. Some 1930s and post-World War II Europeans surely did see judicial review as a possible obstacle to the rise of authoritarian political movements. However, the Weimar Republic actually did have judicial review. Yet German judges did little to prevent the Nazis from taking over. Indeed, many of the judges supported parts of the Nazi agenda and collaborated with the Nazi regime when it came to power. This doesn't prove that robust judicial review is undesirable. But it does suggest that the rationale for judicial review can't be based on its supposed ability to prevent future Holocausts.

Hank Bowman, MD (mail) (www):
Ginsberg is an embarrassment and should have retired years ago.

Unfortunately she's now probably more conservative than anyone the Ob-amateur would appoint.
4.13.2009 5:49pm
Vermando (mail) (www):
Come now, at least in Germany I always thought the evidence was pretty clear that the extremely powerful court systems there - as well as other features of the government, like the ban on referendum - was a response to the atrocities of the reasonably popularly supported Nazi government. I'll recheck my sources but I'm pretty sure I remember this.

In any case, to pretend like there was some democratic upswell against the Nazis which they crushed by means of totalitarianism seems a bit like rewriting history in my book.
4.13.2009 5:55pm
Ilya Somin:
Come now, at least in Germany I always thought the evidence was pretty clear that the extremely powerful court systems there - as well as other features of the government, like the ban on referendum - was a response to the atrocities of the reasonably popularly supported Nazi government.

That is to some extent true in Germany. Though even there, there was a tradition of judicial review that predated the Nazis. However, Ginsburg was speaking of the rise of judicial review in Europe generally.

to pretend like there was some democratic upswell against the Nazis which they crushed by means of totalitarianism seems a bit like rewriting history in my book.

I did not say any such thing, and certainly didn't say that there was "some democratic upswell against the Nazis." Merely that absent the establishment of a dictatorshp there would probably have been no Holocaust.
4.13.2009 6:00pm
jjv (mail):
I think this statement is amazing coming from someone who has done as much as an Justice on the Court to enshrine the abortion license into law. Justice Ginsberg voted to make a state law preventing partial birth abortion in the 9th month unconstitutional. Certainly one part of humanity has been hurt, not helped, by the independent judiciary. It is the judiciary, not the political branches, that has consigned these human lives to death and to be Constitutionally unvalued. Life unworthy of life, as the National Socialists put it.
4.13.2009 6:09pm
AndrewK (mail):
See Constitutional Review in the Global Context, John Ferejohn, 6 NYU J. Legis. &Pub. Pol'y 49 (2003).
4.13.2009 6:15pm
einhverfr (mail) (www):
Being someone who occasionally gives speeches and even publishes them....

Sometimes points in my speeches are factually wrong. I do my best to fact check but sometimes things either come out wrong or represent a blind spot in my understanding of a topic.

So I think it is reasonable to point out factual errors. However, one should have a lower expectation of fact in spoken lectures and speeches than in written papers and opinions.
4.13.2009 6:17pm
martinned (mail) (www):
Hurray for the Netherlands! Constitutional ban on judicial review since 1814!
4.13.2009 6:18pm
Dilan Esper (mail) (www):
Actually, it's strange to claim that the Holocaust influenced the adoption of judicial review in Europe.

But, with respect to the actual point of her speech, one thing that IS true is that the Holocaust was an immense factor in the internationalization of human rights standards in the post-WW2 era, which included more national courts citing transnational sources of law. The Nuremberg trials were a starting point for this process.
4.13.2009 6:19pm
PersonFromPorlock:

But no democratic government has ever committed mass murder or genocide against its own citizens.

Mostly true: but if a democratic government can rationalize that some born within its borders aren't citizens... well, ask an Amerind.
4.13.2009 6:21pm
karl m (mail):
Judicial Revie spread in Europe thanks to the victory of the USA in WWII.Thanks to Hans Kelsen there was a limited ( only a few institution not citizens had standing until 1977) judicial review in Austria.
The Weimar Supreme Court copied Lochner in 1925 , in a decision that caused an uproar and a very insightfull debate between Karl Schmitt and Hans Kelsen.It was the only decision based on judicial review ,power that were not based in the Constitution. But was defended by Schmitt based on the first Marshall argument, only when there was no way to apply both the Constitution and the law the Court can disregard the law.He tought that power belonged to the Reich Chief of State while Kelsen defended the power of judges. Kelsen developed the Constituional Court model , a half carrer judges half appointed judges court, with only judicial review power in abstract, that is, no case is needed.
4.13.2009 6:26pm
ruuffles (mail) (www):
Is it a coincidence that three threads in a day are devoted to the sole female justice? Is there going to be a thread for the article in today's NYT on the sole African american justice?

Consider these nuggets

Or how can you not reminisce about a childhood where you began each day with the Pledge of Allegiance as little kids lined up in the schoolyard and then marched in two by two witha flag and a crucifix in each classroom?


The event, on March 31, was devoted to the Bill of Rights, but Justice Thomas did not embrace the document, and he proposed a couple of alternatives.
...
“I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”


“I have to admit,” he said, “that I’m one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way, I like to load it. I like to look in and see how that dishes were magically cleaned.”

I imagine people give a Clinton or Obama nominee hell if he or she said the last quote.
But props to Thomas for this

In those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it. Beyond that, it would be illegitimate, I think, and a violation of my oath to incorporate my religious beliefs into the decision-making process.
4.13.2009 6:28pm
Bama 1L:
If something is "to some extent true" of Germany, then surely it's an influence on European courts, Germany being a really important country in Europe after all.

Also, didn't just about every philosopher of law writing after 1945 take a crack at explaining why Nazi courts were so bad? Don't you think this just maybe affected how postwar European courts did business?

Furthermore, if their own courts' failure to do anything about totalitarianism didn't get Europeans more interested in judicial review, what did? And in this regard, American courts stand as a example of how to do things right. Our courts made some pro-freedom, anti-totalitarian decisions (as Europeans would understand them) during the war: Barnette, Endo. There are cases besides "economic liberty" ones, you know, and it's not like many other countries had courts that were interfering in economic or social policy at all.
4.13.2009 6:28pm
ruuffles (mail) (www):

Our courts made some pro-freedom, anti-totalitarian decisions (as Europeans would understand them) during the war: Barnette, Endo.

Ironically it was the war that gave us the shitstain that is Korematsu.
4.13.2009 6:31pm
Ilya Somin:
Is it a coincidence that three threads in a day are devoted to the sole female justice?


Well, it may have something to do with the fact that this was a day when she made an important speech on a major legal issue. If you look in our archives, you will see many posts about male justices.
4.13.2009 6:33pm
Ilya Somin:
Furthermore, if their own courts' failure to do anything about totalitarianism didn't get Europeans more interested in judicial review, what did? And in this regard, American courts stand as a example of how to do things right. Our courts made some pro-freedom, anti-totalitarian decisions (as Europeans would understand them) during the war: Barnette, Endo. There are cases besides "economic liberty" ones, you know, and it's not like many other countries had courts that were interfering in economic or social policy at all.

Actually, a number of countries had judicial review of economic liberties issues before World War II. Weimar Republic Germany was one of them. The European nations that became totalitarian before World War II were mostly never democracies to begin with (Russia) or democracies that were only recently and weakly established. And some of the latter had judicial review (Germany) yet it failed to prevent the rise of totalitarianism.

Thus, it is dubious to claim that Europeans began to support judicial review because they thought it could prevent another Holocaust. They did, of course, begin to support it because they thought it could prevent various lesser human rights violations and provide other benefits.
4.13.2009 6:38pm
Ilya Somin:
Also, didn't just about every philosopher of law writing after 1945 take a crack at explaining why Nazi courts were so bad? Don't you think this just maybe affected how postwar European courts did business?

Of course it did. But that wasn't Ginsburg's claim. She argued that Europe adopted judicial review in large part because of the Holocaust, not merely that specific legal doctrines were influenced by lessons drawn from the Nazi example.
4.13.2009 6:40pm
Clayton E. Cramer (mail) (www):
While Nazi Germany was a dictatorship, it was one that was created through democratic processes. Hitler didn't seize power; it was granted to him by a democratically elected Reichstag.
4.13.2009 6:41pm
Clayton E. Cramer (mail) (www):

Thus, it is dubious to claim that Europeans began to support judicial review because they thought it could prevent another Holocaust.
Completely agreed. Nazi judges were as enthusiastic in the creating of a totalitarian society through the claim (and probably an accurate claim) that they were implementing the popular will.
4.13.2009 6:43pm
Houston Lawyer:
Following the Holocaust, in Germany the courts no longer embrace abortion as a right. If you want to use the Holocaust as a pivot in your arguments, you should be aware of the dangers of assigning non-person status to people.
4.13.2009 6:51pm
ruuffles (mail) (www):
Whoops. Here's the link to the article on Justice Thomas

NYT
4.13.2009 7:18pm
FWB (mail):
Lets see, one way or another the Congress can override anything and everything any court decides and Congress can eliminate the judges through impeachment since, in our system, Congress can determine the meaning of "good behaviour" - albeit not Constitutionally but we seem to allow Congress free reign in redefining terms as they see fit.
4.13.2009 7:26pm
Ilya Somin:
While Nazi Germany was a dictatorship, it was one that was created through democratic processes. Hitler didn't seize power; it was granted to him by a democratically elected Reichstag.

Not entirely true. Hitler and the Nazis never actually won an election (they got 32% of the vote in the last free election). Rather, Hitler was invited to be chancellor by President Hindenburg (not by the Reichstag). More to the point, Hitler's more extreme policies only became possible because he abolished democracy after becoming chancellor. Coming to power by partially democratic means is not the same thing as having a democratic government once you are in power.
4.13.2009 7:30pm
Jon L.:
Ilya, Hitler didn't just take power to become a dictator, the Reichstag ceded it to him via a perfectly democratic vote (if you ignore the questionable circumstances of the Reichstag fire and the regular use of the SA to influence the vote.) That the Nazis never held a true majority of the Reichstag is immaterial. Hitler asked for absolute power, and the Reichstag, the democratically-constituted legislature in Germany, gave it to him. A democratically-elected government voluntarily (again, circumstances notwithstanding) ceded power to create a dictatorship.
4.13.2009 7:33pm
Wahoowa:
Ilya:

democratic means or processes =/= winning a majority vote
4.13.2009 7:35pm
EverydayLiberal (mail):
"But no democratic government has ever committed mass murder or genocide against its own citizens." Otherwise known as the No True Scotsman fallacy. Most people are only so happy to rejoice and applaud when their freedoms are given away in times of crisis.
4.13.2009 7:43pm
ruuffles (mail) (www):

Ilya:

democratic means or processes =/= winning a majority vote

Our electoral college being a perfect example. Clinton won the electoral votes without majorities in many states due to a significant third party.
4.13.2009 7:46pm
Bama 1L:
Nazi judges were as enthusiastic in the creating of a totalitarian society through the claim (and probably an accurate claim) that they were implementing the popular will.

That's the point! Judicial review often resists the popular will. German judges failed to do anything because they had weak theoretical or institutional bases for standing up to the commands of the political leadership.
4.13.2009 8:00pm
Hervé (mail):
jjv:
I think this statement is amazing coming from someone who has done as much as an Justice on the Court to enshrine the abortion license into law.
Houston Lawyer:
If you want to use the Holocaust as a pivot in your arguments, you should be aware of the dangers of assigning non-person status to people.

I'm sorry to deviate slightly from the topic... but do you categorically think it's impossible to both support abortion AND disagree with the Nazi non-person/"life unworthy of life" status?

I mean, perhaps there's a "slight scientific difference" between, you know, born victims of the holocaust, and unborn babies? such as being... born? Of course you can disagree with this, but this kind of considerations could help explain why many apparently smart and logical people having seemingly incompatible* opinions on this matter.
*according to you

I don't want to ignite another discussion on abortion. I honestly believe both sides have solid arguments. I'm just surprised, to say the least, by comments which suggest that Justice Ginsburg is simply out of her mind for having different opinions, on two different issues.

There's something about putting the Nazi and people who think it's ok to abort unborn babies on the same level which really bothers me, and which I perceive as yet another form of -albeit pro life- ideological dictatorship.
4.13.2009 8:09pm
Ralphe (mail) (www):
It would seem the lawyers and judges were in the best, perhaps only position to rule against or negate some or even most of Hitlers early policies. After all he did control the legislative body. Is there any record that this was even attempted? If not why not? And why expect anything different today?

And in so far as "... no democratic government has ever committed mass murder or genocide against its own citizens." Democratic govenments have not been around all that long in the modern world. Give them a little time. Damn I am feeling cynical today!
4.13.2009 8:12pm
Bored Lawyer:

It is the judiciary, not the political branches, that has consigned these human lives to death and to be Constitutionally unvalued. Life unworthy of life, as the National Socialists put it.


Let's also not forget the infamous Dred Scott decision. Another example of the judiciary devaluing life of one group of persons.
4.13.2009 8:25pm
KeithK (mail):

It would seem the lawyers and judges were in the best, perhaps only position to rule against or negate some or even most of Hitlers early policies. After all he did control the legislative body. Is there any record that this was even attempted? If not why not? And why expect anything different today?


Are you seriously asking this? If German judges had wanted to and tried to stand up against Hitler they would have been brutally repressed. Hitler and his party already had a history of violence before he came to power.
4.13.2009 8:56pm
George Weiss (mail) (www):

Democracy has many serious flaws, some of which I have analyzed in my own scholarship. Indeed, I am probably much more skeptical about democracy overall than Justice Ginsburg is. But no democratic government has ever committed mass murder or genocide against its own citizens.



how about the GAZA government killing its political opponents (hamas v. fatah)
4.13.2009 9:10pm
Houston Lawyer:
Herve

A baby the day before it is born is otherwise indistinguishable the day after. Maybe we should just call them unlawful enemy combatants, then the court would afford them some rights.
4.13.2009 10:56pm
John Tillinghast (mail):
I'm just amazed that somebody used dubious correctly on the Internet.
Do you also spell loose with one "o" when you mean "does not win"?
4.13.2009 11:08pm
DangerMouse:
A baby the day before it is born is otherwise indistinguishable the day after. Maybe we should just call them unlawful enemy combatants, then the court would afford them some rights.

Not while the Infanticide President reigns.

Abortion is the glue holding the modern left together. It is promoted, praised, and advocated. There is no such thing as pro-choice, but there is plenty of pro-abortion.
4.13.2009 11:57pm
Brian G (mail) (www):
Oh yeah. I am sure a dictator would say, "Damn I would run roughshod over the people but the Supreme Court said it is against the law." I'll have to kiss babies, shake a lot of hands, and promise largess from now on.
4.14.2009 2:48am
Hervé (mail):
Houston lawyer:
I am not trying to decide who's right and who's wrong. I am merely trying to understand how individuals who are otherwise capable of sound legal thinking, such as Justice Ginsburg, can be both pro-abortion and use "the Holocaust argument" in other situations.

Such individuals base their seemingly contradictory opinions on logical and factual assumptions.
Some or all may be false, but assuming these assumptions are correct, then their reasoning is acceptable. Therefore, challenge their opinion by bringing down the assumptions on which they base their judgment if you wish, but questioning their logic altogether will only weaken your own argument.

After all, Israel allows abortion, and in France, abortion was instituted by Simone Weil. During the war, she was deported to a concentration camp, and lost several members of her family to the Holocaust. Yet, both Israel and Mrs Weil have regularly used "the Holocaust argument" without losing their credibility. Indeed, the former has produced some of the greatest legal minds (Prof. Bebchuk to name one) and the latter is also considered one of the most brilliant legal thinker of her generation.
4.14.2009 5:50am
Erika F.:
Clayton, Jon, the Reichstag that passed the Enabling Act was not democratically elected, and the way the Enabling Act itself was passed was extremely questionable, too.

The last democratic Reichstag election took place on November 6, 1932. It failed to give the coalition that the Nazis belonged to the necessary two thirds majority to change the constitution, which was necessary to pass the Enabling Act.

The Reichstag that passed the Enabling Act was elected on March 5, 1933. That election cannot in any way, shape, or form be called a democratic election. Emergency decrees limited the political activities of the opposition; the SA's intimidation dominated the election process; opposition politicians had been arrested, especially after the Reichstag fire (more on that below). The Enabling Act itself was passed while the Krolloper (the building where the Reichstag convened after the Reichstag fire) was surrounded and filled with SA troops, providing an atmosphere of intimidation; the Reichstag, led by its president, Göring, changed the rules of procedure so that all members absent without an excuse were counted as present to ensure that the absence of the arrested communists and (possibly) the social democrats would not result in a lack of a quorum for the constitutional amendment.

A key event that allowed all this to happen was the so-called "Preußenschlag" in July of 1932. The Preußenschlag, very briefly, was a coup by which von Papen via an emergency decree dismissed the strongly pro-democratic minority government of Prussia under the pretext of needing to deal with the violence of the Altonaer Blutsonntag etc. The real purpose, though, was to take control of the Prussian police, which was one of the strongest (if not the strongest) pro-democratic force that the republic still had.

The most important consequence was that in early 1933, Göring then became minister of the interior of Prussia, giving him full control over the Prussian police. He replaced most commissioners with trusted allies and started using the police against the opposition parties to harass and to arrest their members where possible; he augmented the police force with SA members; and required them to not interfere with the street violence caused by the SA. In essence, the Prussian police had become another arm of the NSDAP by the time the March elections came around.

In short, the process by which the 1933 Reichstag was elected and by which the Enabling Act was passed failed to adhere to basic democratic standards.
4.14.2009 10:59am
Rich Rostrom (mail):
Erika F.: The German election of 5 Mar 1933 was certainly seriously flawed. But it was not a sham election. Over half the vote went to parties other than the ruling Nazis, and the Nazis failed to win a majority of seats.

If "That election cannot in any way, shape, or form be called a democratic election", then what of American elections after 1876 and before 1966?

In every one of those elections, a significant fraction of eligible citizens was disfranchised by a mixture of violence and fraud: blacks living in the South. In 1930, at least 4M black adults lived in states where they were illegally prevented from voting (the ex-Confederate states, less Tennessee, where black voters were a cog in Boss Crump's Memphis machine). That number was over 5% of the total voting-age population, and over 10% of the votes cast in the 1932 election.

Of course the 1932 election was decided by more than 10%; but the 1916, 1892, and 1884 elections were decided by much less than that; all of them would have been reversed had Southern blacks been allowed to vote unhindered. Does that mean that Grover Cleveland and Woodrow Wilson were not democratically elected?
4.16.2009 12:00am

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