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.
Squeeky,
Science? You keep using that word. I do not think that word means what you think it means.
When you use that word, it makes my head hurt.
John,
We all understand the difference between the Communist Manifesto, and the Constitution of the U.S.A.
One became law, the other didn’t. I leave it to you to google which is which.
I understand the difference, and your fascination with the word ‘covet.’
I do not understand how your comment pertains to anything on this thread.
Bob – have you considered consulting a neurologist for the pains in your head? Now, I know that Dredd doesn’t know what the word science means or the word social, but I have more confidence in Squeeky’s vocabulary. So, the next question is, do you know the meaning of science?
nick, Paglia enjoys playing the part of the contrarian. She says some interesting things, but she is hardly the only true feminist.
Paul C. Schulte “bettykath – Annie was pointing out what she ‘thought’ to be slut shaming, not what reality was.”
Slut shaming was being put forth. Annie just called it what it was.
“The question I was asking is why was Ginsberg taking the case, to save the girls or the boys?”
Ginsberg was looking for equity. Why were young women able to buy 3.2 beer at 18 and young men had to wait until 21? Since the intent was to reduce drunk driving she wanted both to be able to buy the reduced alcohol beer at 18. Sorry you couldn’t figure that out.
bettykath – it is never an easy question. So how did it end up? Everybody buying beer at 21?
SWM, I’ll take the swipe. What about Paglia?
JT, well it was inevitable in light of the rank misogyny being displayed on this thread. I hope that’s not uncivil.
Annie, I have deleted a personal attack in violation of our civility rule. I also deleted the response to that comment.
Jack, who are you to tell me to move on? How condescending of you. No I’ve got my entire day blocked off just to get comment on this thread. I’m not going anywhere. You can try to play Jill, but I doubt she’ll let you play her. But by all means keep trying.
SWM, yeah, ‘You are a fake feminist!’ ‘My wife and my daughter are REAL feminists, cuz I say so’.
MA,
You have to admit that estate tax or death tax; massive taxation, even double taxation have directly impacted “men or whites” which, presumably, are American-Americans, as has affirmative action which is redirected bias, and please permit me to include rent control and “anti-discrimination” laws which “socially engineer” and dictate that landlords rent to particular categories taking the decision on their private property away from them. I know you abhor the classic American principle of “freedom” but those sound like direct, quantifiable impacts and denial of the enjoyment of and “freedom” to employ one’s private property as one chooses.
Understanding that “thou shalt not covet,” that a certain category of citizen should benefit because he covets what another citizen owns based on the complaint du jour of the victim du jour, has nothing to do with the very American concept of possessing private property and obtaining the “blessings of liberty.”
To say that the government shall determine whom the winners are and whom the losers are is dictatorial, tyrannical, oppressive and collectivist. Somehow I just can’t imagine that was the original American thesis.
There seem to be distinct differences between the ideologies of the American
Constitution and the Communist Manifesto. It does not seem that those
concepts are the same. We must all know what the fundamental differences
are. If the American idea is that the government is designed to control any/all industry and redistribute wealth based on arbitrary criteria, then the constitutional American ideology is communism. Do you perceive that to be the case? Alternatively, if Americans were intended to be self-reliant and free of governmental control then the government was intended to serve, not dictate to, the people by facilitating only security and infrastructure.
Annie,
Why must you insist on making everything personal? I can understand an inability to articulate a position, but I cannot understand why you feel the need to resort to things like “is it part of your job?”
If you don’t like my comment or response, ignore it. Move on to other things. I’m pretty sure Jill can engage in a civil discussion without your help.
So a man gets to decide who a true feminist is. lol
Jack, Thanks for your answers. I look at human beings as being being part of nature with the capacity to control certain aspects of what happens in our bodies. For example, it could be argued that diseases are natural. We all get them. Yet, most people, although not all people, will take medicine to address this natural event when it occurs in their lives.
Similarly, women and men do not automatically have one child after another. They have not done so invariably through history or cross culturally.
In some cultures and sub cultures this does happen. The belief in doing so is usually linked with religious ideology and often occurs in societies where women hold less power than men.
However, in other cultures it is far more common for women and men not to have one child after another until the woman dies, gets too sick to tolerate pregnancy or the pair cannot have children any longer. So which is natural? I would say, strictly speaking, neither is natural. Choices, (or non-choices in those circumstances which are forced) and choices which are made freely, are products of human beings choosing certain sets of norms over others.
I doubt the liberal women here abide a true feminist, Camille Paglia.
Jack,
Sorry about that. I meant to write “John said.” My response was meant for him.
The Bra burning was pretty much over by the time I got to college. I have no problem sharing the planet with other sexes, races etc….. What I do have a problem with, is knuckleheads that judge women and other races based solely on that. Pretty fair skinned. There are many who are white males, promoted on that issue alone. Face it, some folks are just smarter….
I have to admit is was a firm advocate of bra burning. 😉
Annie, Please explain what was condescending about what you quoted Paul as saying.
I understood Paul as saying his mother had all but her dissertation. Indicating that his mother was very well educated. He went on to say that he discusses thing other than politics with his friends.
I’m just interested to find out why you would consider his statement to be condescending.
Paul seriously YOU of all people accuse me of being condescending? The hypocrisy, Oy. And to think I was going to ignore this.
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on 1, August 6, 2014 at 3:07 pmPaul C. Schulte
Annie – my mother was ABD, if you know what that means and I was raised around and have been attracted to strong, bright women. Many of my good friends are liberal, including my wife. We do speak of other things than politics, though. 🙂 *******Because there is a great wide-world outside politics.*******
Jill asked;
“What do you mean by functioning normally?” A. The ovaries ovulate.
Are you saying that women should not be allowed to choose whether they have a child or if they do, when? A. (with regard to this discussion) No. I will leave that decision up the woman. The same as I would leave the decision to ride a bicycle for mental/physical health reasons up to the rider.
If this is what you are saying, why do you feel this way? What is the reason behind what you say? A. I answered NO to the previous question.
God bless your wife Paul… She must be a Saint.
Annie – how condescending of you, however not unexpected.
Jack, I will respond but I noticed you did not answer all the questions I had asked you. In order for me to respond, I need you to answer so I can understand your frame of reference. Will you do that? Here’s what I asked:
What do you mean by functioning normally? As I said before, women and men have used various forms of birth control throughout history. You can look up written records of the issue to verify what I am saying.
Both women and men may not want to have a child at all or at a certain time. Are you saying that women should not be allowed to choose whether they have a child or if they do, when? If this is what you are saying, why do you feel this way? What is the reason behind what you say?
Again, I feel you do mix up two different instruments, insurance which covers certain things for people depending on the plan and OSHA or state required safety equipment. In the case of sex workers, they definitely need safety protection which would include condoms and birth control.