Ginsburg, Phony Arguments, Phony Refutations

Wed Nov 2 09:39:52 PST 2005

In a message dated 11/2/2005 12:23:17 P.M. Eastern Standard Time,  
VOLOKH at writes:

Good  heavens, folks -- if it's "extremist" to support Roe v.
Wade, or for that  matter to support the ACLU, then the word has lost any
descriptive sense  that it might ever have had, and has become purely a
tool for  invective.

Well, okay.  But is there any decision -- judicial, executive,  legislative 
-- that you would admit to be susceptible to definition as  "extremism"?
Suppose that a future Congress decides to impose Nuremburg style  
restrictions on the liberty of an ethnic or racial class.  Would that be  extremism?
Suppose that the Supreme Court of this day authorized the forward  
continuation of the eugenic sterilization in Virginia?  Would that be  extremism?
Why isn't something that a reasonable, mainstream justice like Byron White,  
viewed as an exercise of raw judicial power an exercise in extremism?  
Is it because, whatever extremism is, it can't be  something that a lot of 
folks approve of or are uncertain about?
Jim Henderson
Senior Counsel
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