Supreme 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.
I 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.
@annie
Well, what do you expect? Sure the party would be more popular if it pretended that killing babies was AOK. After all, you get to avoid all that “terrorizing” that occurs when you show pictures of aborted fetuses. The problem is, most of us are going to vote for the party that is more anti-abortion.
As far as all the gay stuff, most of that will fade over time as more and more people lose interest in the 2%, particularly since the gay males are intent on killing themselves off with HIV. One day science may even cure whatever it is that causes homosexuality.
Already time marches on on the gay stuff. The CDC is recommending abstinence and truly monogamous relationships for gay men to protect themselves. You would almost think that a group of rabid Christians had infiltrated the CDC.
Squeeky Fromm
Girl Reporter
Jill,
1. I hope you didn’t see any hate in my comments. That is not/was not my intent.
2. How can you express a desire for real discussion when you won’t even concede that ovulation is the normal function of the ovaries and that birth control pills (for the most part) work to interfere with that process?
As a 67 year old white male and a lawyer for 40 years, my view is that the feminist movement was one of the best things that ever happened to men in this country. And, mirabile dictu, my heterosexual identity and self-esteem remain fully intact, Neither men nor whites have been victims of anything other than the fear apparently caused by the sounds of quickly deflating egos.
Mike – you clearly did not go to school when Feminist Studies was ramping up.
I’m sorry to see all the hate in these posts. This is such an important issue, yet it’s mostly a trading of insults with little real discussion.
Annie,
You’re welcome to place any label on me that you like. I may well be disingenuous. Fortunately for all of us, that is not germane to the discussion. It does, however, provide an easy out for those whose intellect leaves them unsuited for civil debate on the merits.
Contraceptive protection is protection from conception. The same as Traumatic Brain Injury protection would be protection from traumatic brain injury. The tool,/device is nonetheless accurately described as protective equipment.
Paul, you like ‘your women’ to speak only of pleasant things, like fuzzy kittens, right?
bettykath, if you are only going to view these issues through your score-card lens, then you will never notice the larger picture. It was men who advocated for women to vote. It was men who advocated for workplace equality for women. It was men who advocated for public assistance for women. It was men who advocated for child support for women. A huge volume can be written on how men have advocated for women. As long as men are a majority in the House and Senate, additional advances that women make will be a consequence of men advocating for them. You see, it’s not just women advocating for women, it’s men, too. It’s extremely rare to find any woman advocating for men, unless she’s young and has a modern mind, sees herself as a true equal with men.
No, I’m not disputing the quote came from her, I’m disputing that her meaning is the one YOU just attributed to it. I don’t want to have to point out that once again you appear to be disingenuous.
Annie, I quoted Justice Ginsburg’s words from this article.
http://www.glamour.com/inspired/blogs/the-conversation/2014/08/brilliant-things-rbg-said-in-h.html
Are you trying to say that quote was not correctly attributed to her, or that those were not her words?
on 1, August 6, 2014 at 2:43 pmJack
Ginsburg; “Contraceptive protection is something that every woman must have access to to control her own destiny.”
Not “reproductive health”, but “contraceptive protection”. Hence, protective equipment! At least Justice Ginsburg is honest.
*********************************
Jack, you just put your words into the mouth of Justice Ginsberg. You don’t want me to point out the hypocrisy of that when you just chided Elaine for “putting words in your mouth”. Or are YOU being dishonest?
Elaine M.,
Please don’t put words in my mouth. If you want to quote me, try quoting me.
Ginsburg; “Contraceptive protection is something that every woman must have access to to control her own destiny.”
Not “reproductive health”, but “contraceptive protection”. Hence, protective equipment! At least Justice Ginsburg is honest.
Jack said: ” One can surmise that the Founders established freedom, which by definition is neutrality, an absence of bias or affirmative action in any direction.”
*****
Hmm…let me think. Did the Founders establish freedom for slaves? Were women and men who owned no land allowed to vote? Were the Founders “biased” against Blacks, women, and men who were not landowners? Did everyone have equal rights–or did some have to fight for them…over the course of many decades? It seems like the Founders were in favor of affirmative action for white men of means who enjoyed special rights not granted to other groups of people for many, many years.
Elaine – women’s voting rights had to take a back seat so they could pass voting rights for black males. The thinking was they could get one through but not the other.
Squeekers, one of my daughters is a conservative, she and my son in law both think that all the anti abortion, homophobic religious zealots have degraded the Republican party and should just shut up, because my daughter and son in law would like to be able to have a Republican President again some time in their lifetime and they know it won’t happen with the religious right and tea party running the Republicans into the ground.
Jack, We liberals kind of stick together in Texas. You know we are Wendy supporters and the fundamentalist christians are not treating her so well because of her pro woman views. During the last conversation I had with a conservative self described saved christian woman she told me that Obama won the election because god was punishing the US for permitting too many abortions. She next followed me down the street and proceeded to yell at me. I tried to be tolerant but it got to be a bit much.
Is anyone going to point out the underlying sexism in Justice Ginsburg’s statement? And how ignorant it is?
If we went by her statement in applying the law, the rule of law wouldn’t last for much longer. I could see this (lack of) reasoning in leading to only female jurors and judges hearing rape or assault cases as one example. It would be easy to start making the list on how we could destroy the law and concept of justice by subdividing cases into “only X is qualified to understand”.
@samantha
Well, I think you’re right, that most young women don’t relate to all the old timey freedom-rider, femi-nazi types. And more and more of us are anti-abortion.
Squeeky Fromm
Girl Reporter
My friends in Austin just happen to be liberals Jack. I have conservative friends and acquaintances and relatives right here in the county in WI in which I live. It’s the most conservative county in Wisconsin.
@jack
Don’t let these Texas liberals fool you. Get ’em in a bar, get a few beers into them, and they’re hollering for Bob Wills music, and two-stepping to beat the band. You just have to get through all their phony-baloney la-de-da stuff. There is a reason why they stay here.
Squeeky Fromm
Girl Reporter
Samantha, you don’t speak for most young women I know. They are very concerned with the right wing chipping away at what was won by women in the 60’s women’s movement. Young women do not want to go backwards. I have three daughters, probably your age, they know what is happening.
Annie – you do not speak for all young women either.