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I was disappointed – but not surprised – when RBG died a month ago from today. What surprised me – amazed me actually – was the New York Times article Why Ruth Bader Ginsburg Wasn’t All That Fond of Roe v. Wade.

The article pointed out that RBG actually agreed with some aspects of conservative criticism, of which Roe v. Wade was a prime example. RBG believed that the Supreme Court's unelected judges should not have gotten so far in front of the abortion issue because it was in flux in so many state legislatures. In her view, the Roe v. Wade decision triggered a massive, centralized anti-abortion movement because it eliminated all state laws that specified various constraints on legal abortion. To her, that was overreach that could have been avoided if state legislatures had continued with the issue until something close to a legal consensus emerged. At that point, any Supreme Court decision about abortion would supposedly be far less controversial. So, yes, it would have taken longer, but would have been far less likely to be overturned. My point was that liberal justices don't necessarily always make decisions better than conservative justices.

Later, in a text conversation with my brother, I shared my take from the Times article:

I think a conservative court would not be as much a problem as liberals fear if our congress was more functional and more democratic. Don’t forget, even RBG thought the Roe vs Wade was a bad decision & was actually supreme court overreach....

To which his response was

You're not gay!

His reply was a reminder of his own personal history with respect to human rights. As a guy who had virtually always known he was more attracted to good looking guys than good looking girls, my brother had striven for decades to earn a decent living while having a discreet social life. After retiring, he and his partner moved from their mountain state to California, where they could be more open about their long-term relationship. In 2008, it was suddenly possible to get a same-sex marriage license in California. Sadly, in less than five months that stopped, due to the successful passage of ballot initiative “Proposition 8”. Pushed by a number of organizations like the Mormon Church, the California constitution was amended to ban same-sex marriage. Then, despite immediate legal challenges, that amendment didn't get overturned until 2013. Only then, after being together for more than two decades, were my brother and his partner finally able to get married.

So my conclusion is that those who are arguing for rights not clearly specified in our constitution don't want to have to wait decades to get what they believe they deserve. Understandably, they want to get a quick positive justification from one source, such as the Supreme Court, rather than having to battle with state courts, state constitutions and state legislatures.

The problem, as I see it, is that 5-4 decisions have strong arguments on both sides of the issue being resolved. Such close decisions are the most likely to be revisited. The Advocate made that clear in a recent article, Justices Alito, Thomas Call for Overturning of Marriage Equality.

#100daystooffload Day 11.