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:
In the “old days” of a couple of years ago, my health insurance covered a couple of birth control choices. And I could GOOGLE and quite easily find any number of free condoms. And neither I, nor any single woman that I ever met, ever thought we were oppressed. So you cannot re-write history and claim that, suddenly, unless you have all 20 birth control options free of copay, you are oppressed, or there is a war on women.
I am not so easily led.
It is absurd and foolish to declare that all 20 forms must be accepted, free of copay, from insurance companies. That simply drives up the premiums for everyone. And women can do math. We can add, and we can figure out that we are now worse off, because we had a net INCREASE in our premiums.
I agree that contraceptives and prophylactics should be available to women so they can choose how many kids they want.
But, no, I do not think they should be free from copays simply because they involve reproduction. Like it’s a holy sacrament. It is a medication, with side effects, that prevents pregnancy. Only the poor should have a copay waived.
I seriously cannot understand why more than 8 people on Earth fall for that bit, that unless the Paris Hiltons of the world can get every contraceptive possible for free (and my premium increase to pay for it) then there is a war on women.
How ridiculous.
And I wouldn’t work for a Catholic Hospital if I was going to demand they give me abortion coverage, for example. I would pretty much expect my employer to have standards that reflected the values of those who run it.
http://youtu.be/c75QdarAFKg
Annie,
“The insurance company paid for the knee brace. Should the employer be able to prohibit coverage of the knee brace because dancing is against their religion?”
I don’t believe the government should be able to mandate that the employer pay for the protective equipment for any off-the-clock activity. Period. That would include the knee brace, a bicycle helmet, or a birth control pill.
You wouldn’t think a Dem would need that law. Obama must be fighting a clandestine war on women.
paul c, Yes. I read that women are being paid an average of 9000 less at the white house. That further illustrate how much the law is needed.
@bobk
That headache could be a result of undifferentiated swelling. My advice would be to relax a little and maybe have a mint julep or two. Mint is good for stuff like that. That is a scientific fact!
As far as the CDC, that is true also. But I was just being sarcastic about the rabid Christians. What it is, is that the CDC is discovering the same things that caused adultery to become a sin 3,500+ years ago. It ruins the basis for society and kills and harms a lot of prople.
Squeeky Fromm
Girl Reporter
SWM and Elaine, yes indeed she is.
Well, let’s address the wage disparity among women and men.
There are two sources for income disparity:
1) Women are paid less to do exactly the same job as men. This is actionable gender discrimination, and such victims would get a settlement, with the help of any number of lawyers eager for such an easy case.
2) Women are most often the caregivers in a family. They tend to gravitate towards part-time jobs, and jobs like teaching positions that have vacations that coincide with their kids’. They take off long periods of time most often when they deliver a child. When the child is sick, it most often falls to the working mom, rather than the dad, to take time off from work and care for the sick child. Women tend to fall behind in their careers, or choose part-time work, specifically to find a balance between earning money and spending enough time with their family. Is that a choice or an unfair burden? Should she get advanced as often as a man if she worked 6 months out of the year while he worked 12?
If a woman gets paid less for the same work, that is wrong.
If a woman gets paid less because she chooses to work part-time, that is choice. Too often moms get pulled in a thousand different directions, but they cannot have it all. You cannot get ahead in a job at the same breakneck pace if they keep taking time off. And they can’t be there to witness every single milestone if they work. Either working or staying home both comes with sacrifices. I do not agree with the mommy wars, who pit women against each other who should support each other. And I also disagree with the victim status of women who frequently take time off of work and then complain when their career trajectory slows down. Equal pay for equal work, not special treatment.
Karen – you need to send your equal pay missive to the Obama’s. They clearly have not gotten the message.
There are many reasons I like Paglia, SWM. Firstly, she is a libertarian. Second, she loves men, accepts men as good people, even though she is a lesbian. There are many other reasons, PC being down the list. As you probably know, Paglia hates Hillary. But, why so afraid to express your opinion on Paglia. Feminists are supposed to be strong and unafraid to express their thoughts. Paglia sure as hell does.
Karen, access to birth control is still an integral part of women’s health care. Why should the corporation be endowed with personhood, just to force their religion upon their employees? I can’t wait for the unintended consequences to ensue… and they will, actually they already have. The Satanists saw an open door there.
Annie – so you think of pregnancy as a disease? Birth control is for women’s health?
Elaine, Schlafly is being channelled on the Turley blog.
Elaine M,
That was nonresponsive. The implication of the video was that women/minorities are superior (maybe only equal). The question was why do those groups REQUIRE affirmative action? That’s counterintuitive.
You present the very British, legal, traditional and socially accepted practice of “slavery” to generally denigrate, condemn and blame Americans. It is very interesting that the African tribal chiefs SOLD the slaves to initiate the practice originally. I’d be willing to bet that most Americans didn’t own slaves. Hypothetically, you use history as a tool to obtain position and wealth. That’s a red herring. The fact is that there will never be PERFECT equality; that’s a fantasy. People right now can get a job or start a business. Some people demand the bias, help and crutch of affirmative action to obtain the property of others as the committee the sin of coveting another’s property. Thou shalt not covet.
I loved your video and its demonstration that there is NO NEED FOR AFFIRMATIVE ACTION. There should be neutrality and no bias.
Please respond.
*it was an activity*
So, anyhoo, a Supreme Court justice went on the record declaring that her fellow judges reached a judicial conclusion, specifically because of their sex chromosomes. Because they disagreed with her, she claimed they could not understand women’s issues, because they were men.
What actually happened is that they split along political party lines (which also should not play a part in our justice system), and she lashed out at them.
Because it is a slippery slope to declare that one gender cannot rule on issues that affect another gender. She might not like being told she could not preside over a court case, because it was a “men’s issue.”
And has been said previously, there are female conservative judges in the court system who have also come to the same conclusion as the men on this panel. Does that mean they “don’t understand” women’s issues, or just that they came to another conclusion with which she disagrees?
swarthmoremom,
Remember Phyllis Schlafly? She re-emerged not long ago when she penned an op-ed for The Christian Post.
*****
Ain’t She Dead Yet?: Octogenarian Phyllis Schlafly Writes Op-Ed Explaining Why the Gender Wage Gap Is a Good Thing
http://flowersforsocrates.com/2014/04/16/aint-she-dead-yet-octogenarian-phyllis-schlafly-writes-op-ed-explaining-why-the-gender-wage-gap-is-a-good-thing/
Excerpt:
She recently stirred things up a bit in the media after she penned an op-ed for The Christian Post in which she noted the positive aspects of a having a wage gender gap in this country. According to Schlafly, the wage gap helps women to find “suitable” husbands. Go figure!
Elaine – well, that will give Michelle and Barack Obama coverage for paying women less than men. They should be sending Phyllis a thank you note.
Karen – a prostate exam is more akin to a cervical smear and about as pleasant.
Off the clock activity of square dancing produced a swollen knee in the dancer. That employee didn’t need to square dance, did she,I was ant activity of choice. Her doctor prescribed a knee brace for her to prevent further problems with the knee. The insurance company paid for the knee brace. Should the employer be able to prohibit coverage of the knee brace because dancing is against their religion?
Annie – a mammogram is comparable to a prostate exam. They both are medical screens. A birth control pill to prevent pregnancy is comparable to a vasectomy, not a prostate exam.
Hope this clears things up.
Jill,
I have not taken a position as to whether or not women should have access to birth control. I only question the employer’s obligation to pay for what is clearly being used as protection from the potential consequences of an off-the-clock activity. And I question why that obligation would not extend to other of-the-clock activities that are recognized to be healthy for mental and physical reasons.
The means, be it prescription drug or home grown herbs only matters as far as the employers being forced to pay for it, and that it is being used for an off-the-clock activity.
Ovulation is natural. Getting pregnant may not conform to the chosen lifestyle, but that doesn’t change normal biological function.
Jack – one of the problems I have with the term ‘reproductive health’ is that is seems to subsume that pregnancy is a disease that is to be prevented.
nick, You probably like her because what she says about pc.