On page 27 of one of today’s Supreme Court opinions is this ringing rejection of regulatory regimes. The majority opinion addressed the argument that new regulations would prevent misconduct:Of course, this passage isn't arguing that regulations are inevitably futile. It's arguing that some people -- in this case, a depraved abortion provider named Kermit Gosnell -- will inevitably ignore all rules and regulations for as long as they can get away with it. Here's a fuller version of this passage:
But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.There you have it, ladies and gentlemen. The regulatory state should tremble in fear. There is now “no reason to believe” that additional regulations would affect wrongdoers. That means that regulations may not even be able to escape the lowest level of judicial scrutiny -- rational-basis review.
Environmentalists are quaking in their boots. Gun controllers are throwing their hands up in despair. Financial and business regulators may as well close up shop.
Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.Which is immediately followed by this:
Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.In other words: Some people are so depraved that regulations don't deter them -- until they're caught. So -- obviously -- regulations have to be combined with effective enforcement.
French knows that that's what the passage means, but he assumes his readers don't know it, so he might as well try to score a few cheap, deceptive points.
French finishes the post this way:
Wait. What’s that you say? This is an abortion decision? The regulations in questions were deemed responsible for closing substandard abortion clinics?What Ginsburg actually said was that she once thought the Roe decision -- which came down a generation before she joined the Supreme Court -- was motivated in part by concern about "growth in populations that we don’t want to have too many of." You can argue that she was including herself in that "we," but plenty of people, myself included, use the word "we" to refer to "a group I'm part of but whose chief representatives say and do things I don't approve of." Here's the quote in context, from a 2009 interview with Emily Bazelon. Bazelon asks Ginsburg about "the lack of Medicaid for abortions for poor women":
Never mind. The regulatory state is safe. Everyone knows that the Supreme Court privileges the killing of children above all else. After all, as Justice Ginsburg has said, Roe v. Wade was motivated by “concern about population growth and particularly growth in populations that we don’t want to have too many of.” The undesired have to die -- the reasoning matters not.
JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae -- in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.At the time of the interview, even Jonah Goldberg was smart enough not to assume that this was a reflection of Ginsburg's own belief:
Left unclear is whether Ginsburg endorses the eugenic motivation she ascribed to the passage of Roe v. Wade or whether she was merely objectively describing it.He didn't quite grasp the fact that, as she said herself, she'd imagined that this was part of the Court's motivation, but she later concluded it wasn't. But at least he realized that this wasn't her view, as she told Bazelon in an interview three years later:
I asked if she was talking about general concern in the society, as opposed to her own concern or the concern of the feminist legal community. Ginsburg said yes....French knows this history, or should know it. French, who can parse words when it suits him, should know that that "we" doesn't necessarily imply an endosement. And French should know that Ginsburg stopped believing in 1980 that Roe was motivated even in part by eugenic beliefs -- again, long before she joined the Court.
But why would he tell the truth, and pass up a couple of good zingers?