Courts, Media, Politics, Society

Ginsburg: Male Justices Do Not Understand Issues Affecting Women In Hobby Lobby

225px-ruth_bader_ginsburg_scotus_photo_portraitSupreme Court Justice Ruth Bader Ginsburg is again making news in public comments made about the Court and its cases. In two different public events, Ginsburg suggested that the Supreme Court majority has a bias due to the gender of the majority of the Court and engaged people in the political debate over whether she should retire and who should replace her. Putting aside the merits of these debates, I remain deeply disturbed by the active public speaking tours of justices who appear to relish the attention and feed public controversies, including many with political aspects.

scaliaI have long been a critic of the increasing public personas maintained by justices like Scalia and Ginsburg. I have previously written about the advent of the celebrity justice. Scalia clearly relishes the public attention, even though his public controversies likely cost him the Chief Justice position on the Court. This trend is a serious erosion of past restraint as justices like Ginsburg make controversial public statements before rapturous crowds.

I greatly valued the model of John Paul Stevens who avoided public controversies and speeches — speaking through his opinions. Notably, some of coverage of the speeches by Ginsburg refer to her as a celebrity for the left and she did not disappoint the crowds gathered to hear her.

In an interview with Katie Couric, Ginsburg discussed the ruling in Hobby Lobby. What is striking is that she did not just discuss the merits (which, at one time, would itself be viewed as problematic) but the extrajudicial motives or bias of her colleagues. She said that the decision meant “women would have to take care of that for themselves, or the men who cared.” Couric then noted that “[a]ll three women justices were in the minority in the Hobby Lobby decision. Do you believe that the five male justices truly understood the ramifications of their decision?” Ginsburg responded “I would have to say no. I’m ever hopeful that if the Court has a blind spot today, its eyes can be opened tomorrow.” No doubt sensing a major story, Couric understandably pursued the point and asked “But you do in fact feel that these five justices have a bit of a blind spot?” Ginsburg responded “In Hobby Lobby? Yes.”

As I have stated previously, I believe that the decision reflects a philosophical, not a chromosomal, difference on the Court. The three women on the Court just happen to be the most liberal generally — appointed by Democratic presidents. That has more to do with the results than their gender. Indeed, Justice Breyer, another consistent liberal voter who happens to be a male, regularly votes in such cases with the three females on the Court. The suggestion of a gender-based “blind spot” suggests that, if they were women, their views would change. However, Ginsburg does not explain how such experience would alter one’s long-standing views on the appropriate role of the courts or statutory interpretation. What specifically would change in the statutory interpretation based on a change in gender? It is not enough to suggest that simply the outcome would change because it is important to women as an act of interpretation.

I believe that it is unfair and injudicious to claim that it is the gender of the majority in Hobby Lobby that blinds them to truth about the case. I recently condemned such criticism of the motivations of judges and I am surprised to see it come from a member of the Supreme Court. Ginsburg seems to be suggesting a more mild criticism that the male justices “just don’t get it.” However, these justices were entirely consistent with their approach in prior cases – as were the justices on the left like Ginsburg and Breyer. Moreover, I do not believe that either side should change their votes based on their identification with parties on a gender basis. I do not believe that the gender or race or experience of justices should materially alter their jurisprudential approach to issues like freedom of religion or statutory interpretation. Indeed, I often find myself agreeing with the result of cases on a legal basis while strongly disagreeing with underlying policy implications.

Finally, Hobby Lobby does not prohibit public support of contraception but only the specific role of religious employers in light of a federal statute requiring a high burden in such cases for the government. I fail to see what changing the gender of these justices would have altered their long-standing view of such constitutional and statutory issues. Indeed, there are plenty of female jurists who reject the arguments embraced by Ginsburg on lower courts. Do these conservative female federal judges just not understand what it is like to be a women?

However, Ginsburg was not done yet. A week later, she gave an interview to Associated Press, which asked her about her retirement. At 81, many liberals want Ginsburg to retire while President Obama can still pick a replacement. If a Republican were to pick her replacement, it could indeed have significant impact on a variety of issues, including many related to women. Ginsburg has steadfastly refused and this time became a bit more combative in asking “So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?”

She then gave a third interview with Reuters and again asked “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

It is the type of commentary that one would expect on MSNBC in debating how liberal a jurist could get through the Senate. It is highly problematic for a justice to see such a public debate about her own seat. Indeed, I view it as inappropriate given her position on the Court.

Ginsburg told Reuters that she does not think that President Obama is “fishing” for her retirement and when asked why he wanted to have lunch recently, she responded “Maybe to talk about the court. Maybe because he likes me. I like him.”

I have great respect for Ginsburg’s writing as a jurist even when I disagree with her. However, I believe that she undermines the Court in her continued public appearances and interviews and that the substance of these comments are particularly problematic. I have long argued for the expansion of the Supreme Court because of the exaggerated importance of these justices on a demonstrably undersized court. While that is unlikely to occur, one would hope that the few justices who make to the Court would show a modicum of restraint in public appearances. These justices are often selected because of factors other than intellect or proven brilliance. Indeed, many justices are selected because they simply have no controversial writing or expressed thought in their career that would pose a problem for confirmation. Yet, once on the Court, the presence on the Court can have a corrupting influence on how justices view themselves and their role. There are exceptions. I considered Stevens an exception as well as Souter. It would seem a reasonable price to pay for being one of the nine to simply avoid public commentary and controversy. You can speak through your opinions without maintaining a constituency in either the Federalist Society or the American Constitution Society. I am sure that many will rejoice at Ginsburg’s suggestion of a gender bias. The issue is a fair one to debate. While I disagree on the suggestion of clear gender bias in cases like Hobby Lobby, it is a legitimate matter for discussion. I just do not think that the justices themselves should engage in that public debate like commentators or congresspersons. I do not think that is asking a great deal for one of nine seats on the highest court.

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  4. Megyn Kelly Misrepresented My Article About Contraception
    I’m an OB-GYN. She’s Not.
    By Jen Gunter
    7/18/14
    http://www.newrepublic.com/article/118761/what-megan-kelly-doesnt-understand-about-contraception-obgy

    Excerpt:
    I was quoted on a Fox show. While this is somewhat surprising, the fact that I was put in the same category as Jon Stewart (apparently we are both liberal ideologues) actually left me feeling honored. The issue, of course, is the four methods of birth control that Hobby Lobby is no longer required to cover under their employee health plan due to the recent Supreme Court ruling. Megyn Kelly of Fox apparently took issue with Jon Stewart calling out claims that Plan B is an abortifacient—a drug causing abortion—as “not true” (he is correct) and my statement that “three of the four contraceptives do not lead to abortion, even using the conservative definition of when life begins,” which appeared in The New Republic. Ms. Kelly claims that Plan B and ella (levonorgestrel and ulipristal acetate postcoital contraception, respectively), and Mirena IUS and ParaGard (both intrauterine devices or IUDs), “Can and do end fertilized eggs.” She is wrong.

  9. Jill,

    I agree, the future can only lie with birth control.

    Interesting, your comment about forced organ donation. Here is an excerpt from a comment I made on June 21:

    I will give that we are all indoctrinated to one degree or
    another. I’m content my congenital morality, favoring
    life, remains free of social contamination. Not a single
    person alive today regrets having escaped the
    abortionist, yet every other person favors abortion. How
    you reconcile such a dual standard that too many
    people now cling to as birthright, has no precedence,
    and never will have. Yet if we propose a new law that
    allows the government to take one of your kidneys for
    transplant, as needed, effectively removing your choice
    in the matter, no differently than you remove the choice
    of a fetus with abortion, not one single person would
    sign on to such a horrendous proposal. It’s easy to
    sign on to abortion when you’re already exempt from
    abortion, not so easy to sign on to forced kidney
    donation when you are not exempt.

    http://jonathanturley.org/2014/06/21/pope-francis-mafia-members-will-be-excommunicated/

  11. Reblogged this on Suffragette Kitty and commented:
    Hi SK fans, My Pub and I were working on a piece just like this, but Jonathan Turley summed it up beautifully here. Why reinvent the wheel? enjoy, also check out Jonathan’s blog on all matters legal. Happy Thursday, xo, LMA

  12. MA, Taxation under the original American thesis was for governmental operations not redistribution of wealth. Taking money from one man to give it to another is redistribution. Taking money from citizens to provide security and infrastructure is taxation and that’s what the Americans did. The kind of “redistribution of wealth” we’re talking about originates with Marx.

    Redistribution in America is precluded by the principles of private property, freedom and self reliance. We know it was the intent because it was the way of life for Americans before the advent of Marxism. It is disingenuous for you to imply that American capitalism was established to be in any way similar to communist economics. Perhaps you can cite examples of American industry after 1776 being controlled by the government and money being redistributed through mandated hiring, direct payments, food stamps, social services from the government. Did they intend and have full schedule free public school K-16 at $20K per student? Somehow, I don’t think that happened until the mid 20th century.

    To covet is a sin. To demand other people’s money because you covet it must also be a sin. To provide any individual with money taken from another simply because the beneficiary covets what other people have must be a sin. Redistribution is based on the fact that one person covets what another has. Nowhere is a job, lifestyle, income or any other economic aspect guaranteed or mandated by the founding documents. Freedom through self-reliance with the right to possess private property seem to be. In America, every citizen is free to take a job or start a business. There is no need for welfare, extended unemployment, food stamps, affirmative action jobs, quotas, social services, public school/college or any other form of redistribution, which is a large part of government. If it is required of them, people will take any job even if it’s changing diapers in the assisted living facility, or start a business even if it’s a toilet cleaning business. If they have to, people will take care of themselves. Simply because they want what other people have, or covet, is not a rationale for taking money from one man to give It to another, in any form.

    Taxation for governmental operations.

    Private charity for redistribution of wealth.

    To take money from one man to give it to another is not taxation, it is confiscation from one man to give it to another and it is antithetical to America while it comports perfectly with the Communist Manifesto: “from each according to his ability, to each according to his need.”

    Do you see the difference?

    P.S. I heard it said that a global irony was that Putin and Russia had eliminated the communist redistribution of the USSR and replaced it with self-reliance as the U.S. pursues a Marxist path.

  13. do you think there would be a conservative in this world whose appointment Democrats wouldn’t fight with everything they’ve got?

    Scalia was confirmed 98-0
    Roberts was confirmed 78-22
    Thomas 52-48
    (Sc)Alito 52-48

    Short answer: no

  14. tossaway:

    “And why, in a free society, shouldn’t an insurance company be allowed to sell an individual policy that only covers what the insurance company wants to cover and that the policy holder wants coverage for?”

    That’s the million dollar question, isn’t it? But the trend in Liberalism is to reduce choice and mandate behavior.

  15. Annie – what are you saying, that children shouldn’t grow up if they are going to be abused or unwanted? Because the foster care system is full of those poor kids. Shall we just leave them on the tracks then?

    People are actually allowed to oppose something on moral grounds. For instance, I oppose infanticide. But wait! That child was clearly unwanted! Was he better off suffocated in a plastic bag and shoved in a garbage can, as so often happens with unwanted newborns? Because the argument, “that child was unwanted” holds true in many different circumstances besides abortion. Abortion is legal NOW, and yet there are still unwanted children who are abused.

    So what’s your point, exactly? Is Hobby Lobby not allowed to object to the destruction of an embryo after fertilization, but it’s OK for you to oppose abortion after 21 weeks? What about 16 weeks? 25? When is it OK in your book to have an opinion different than yours?

  16. How interesting that someone can claim that she opposes abortion after 21 weeks, but it is complete madness for anyone to oppose it at fertilization. There is only one “right” opinion.

    Sad. Really. Freedom is the right to your own opinions, and the right to live your own life largely without interference. The government inserted employers in the healthcare debate when they mandated methods like the Plan B pill, when they knew full well some opposed it on moral grounds. If they hadn’t mandated it, it would be like it was 2 years ago. If you wanted Plan B, you bought it.

  17. Sorry, but I have to laugh when I hear inflammatory phrases like a clampdown on the rights of women.

    Do we have a right to get heart medication if we have to pay a copay? Do we say there is a clampdown on our rights if a particular medication is off formulary? Can you find a single woman who felt her rights were clamped down 2 years ago, when insurance providers had a few contraceptives on formulary, and we paid a copay? I didn’t feel besieged by war, and not a single other woman I knew did, either.

    It’s sheep mentality. We are instructed that, suddenly, a copay = war. Anything less than 20 different options for contraceptives on formulary = a clampdown on our rights. And we obediently bleat the required response of “How true!” without actually thinking about it.

    1. Actually what we have is women getting free services at a level higher than men. We should be calling it the Democratic War on Men.

  18. Betty:

    If we’re going to quibble about semantics: “The embryo is defined as the developing pregnancy from the time of fertilization until the end of the eighth week of gestation, when it becomes known as a fetus,” says James A. O’Brien, MD, ob-gyn, medical director of inpatient obstetrics at Women & Infants Hospital of Rhode Island.

  19. Elaine M,

    “It also showed how some men still perceive highly educated, liberated, articulate, competent women…”

    If your description is accurate, there can be no NEED for affirmative action.

    After your massive evasion, I think the question was why don’t you support NEUTRALITY rather than the bias of affirmative action; after all, it is not necessary, right?

    You presented the video that demonstrated the superiority or equality of women in terms of capacity, ambition, resolve, stamina, etc.

    Do you support an equal, unbiased or neutral position on college admissions, employment, etc., and the elimination of affirmative action?

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