The Bader Ginsburg Controversy and the Americanization of Post-Apartheid Legal Culture
Pages 519 - 533
In early 2012, Justice Ruth Bader Ginsburg of the United States Supreme Court suggested in a television interview that Egypt look toward the South African Constitution, rather than the United States Constitution, as it starts its constitution making process. The comment caused a public outcry in the United States and resulted in calls for the impeachment of Justice Ginsburg. This essay revisits the Ginsburg controversy in order to explore the relationship between South African and U.S. American constitutional scholars and judges and their constitutional views and principles. Justice Bader Ginsburg’s comment about the South African Constitution is not an isolated occurrence, but rather forms part of a longstanding and ongoing scholarly engagement between two influential constitutional traditions, judicial supremacy and parliamentary supremacy. This essay discusses central aspects of this engagement, most particularly the collaborative development of transformative constitutionalism as a result of the Americanization of post-apartheid legal culture. It concludes with a brief reflection on the uncertain future of this post-national scholarly engagement in light of the recent rise of populist constitutionalism in both the United States and South Africa.