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.
Good lord Paul. Teenagers have gigantic libidos and to think they will abstain from sex just because Mom and Dad and Pastor said so, is ludicrous. Abstinence only doesn’t work. It was also pushed in Uganda by these extremist Christians and guess what? AIDS INCREASED in the population, because they discouraged condoms and pushed for abstinence only. Thank you American meddling fundamentalist missionaries.
Annie said; ” The four forms HL prohibits are not abortifacients.”
Human life begins shortly after conception. That’s a scientific fact. As such we can avoid any further discussion on that point.
The four forms that HL has a problem with, according to the FDA, may prevent the fertilized egg from implanting on the uterine wall. -This is not Hobby Lobby stating that as a potential. It’s the U.S. Government.
What Annie is attempting to do is equate the beginning of human life with pregnancy. (i.e. that the pregnancy cannot exist until the fertilized egg implants on the uterine wall.) However, abortion is the ending of unborn life
In 1989, SCOTUS examined the issue of human life beginning at conception. It found the preamble of the Missouri statute (that human life begins at conception) to be constitutional.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=492&invol=490
So, those who claim that the four drugs that Hobby Lobby has a problem with are not “abortifacients” are either being intellectually dishonest, or demonstrating ignorance on the subject.
Squeeky, what has happened in several African nations and their recent anti gay laws is extremely relevant to what is happening here in this country. These fundamentalist evangelical missionaries USED Africa as a testing ground. What they haven’t thus far been able to do here, they have done in several contries in Africa. I believe Uganda actually rescinded its anti gay law recently. Perhaps they saw to what degree their country was being meddled with by extremist Christians from the US, like Scott Lively. We can learn something by observing to what degree these extremist Christians manipulated a vulnerable society.
Annie – they rescinded the law on a technicality.
Annie – never underestimate a smooth-talking male. That is probably what happened to Palin’s daughter.
@annie
Forget Uganda and the attempt to twist this into an anti – Jesus campaign. Try something relevant:
http://m.newsbusters.org/blogs/tom-blumer/2014/07/17/megyn-kelly-eviscerates-jon-stewart-leftist-ideologues-abortifacient-bir
Squeeky Fromm
Girl Reporter
Karen, Samantha, Squeeky, Jill and others have changed the diversity and dynamic here so much for the better. Kudos.
Yes Squeekers, let’s emulate Sarah Palin and encourage abstinence only for our daughters. How well that worked out for Palin’s daughter.
SWM and Elaine, it was a cold war for a while, it’s heated up in the last few years. It will make sure Democrats keep winning Presidential elections.
@karens
Yes, what you said! When somebody drags their little 16 year old girl to the doctor for bc pills, it isn’t because their “reproductive health ” isn ‘t working just fine. It ‘s because it is.
Squeeky Fromm
Girl Reporter
Squeeky – they are usually taking their 12 year old girl to the doctor for birth control pills (ostensibly to regulate their periods).
John:
1. All taxation represents the redistribution of wealth. If you are opposed to the notion of taxation entirely, the only recourse is to remove yourself from all of your social moorings and relocate to the Hobbesian paradise of your choice, if you can find one, Assuming that you agree that taxation is essential for some purposes, then the issue becomes what sorts of taxes to impose and the purposes for which they will be expended. Those are public policy issues to be determined by elected representatives.
2. The notion of covetousness has no bearing on tax policy. Indeed, I have never heard the word “envy” used other than by those persons who perceive themselves to be the targets of envy, i.e., people who have anointed materialism as their god and whose self-images are defined by their stuff. (I need to modify this last statement. I did covet a friend’s 3-speed Schwinn with thin tires and a headlight once. But I was 11 and got over it.)
3. Your suggestion that I “abhor the classic American principle of ‘freedom’ ” makes no sense and does not merit a response.
4, I have no idea why you are fixated on the Communist Manifesto. It has no relationship to the Constitution in any respect. And before you bring it up again, the Preamble to the Constitution is not part of the organic law of this country, however you may wish it to be.
John, the more or less primitive libertarianism you appear to espouse has no more basis in traditional western legal thought than primitive fundamentalism has in traditional western theological thought. I’d be interested in knowing the identity of the writers (other than Bastiat) who have had the most influence on your views.
Mike – the theory of taxation is to pay for government services not redistribute it. The problem is that with the Great Depression the US government got into the charity business because local charities were overwhelmed. That has slowly moved to the redistribution you seem to support. Personally, I am against it.
You know the archaic, obsolete faux feminists are getting their butts kicked when they bring out Phyllis Schafly. I’m trying to determine if it’s more lame or sad. But, most certainly desperate. The conservative women here are such a breath of fresh air.
Karen, I worked for the Alexian Brothers hospital system the 90’s, they covered birth control in their employee group insurance. The four forms HL prohibits are not abortifacients. What changed? Extremism, that’s what. Watch “Jesus Loves Uganda”. That kind of extremism is in play here.
Paul – no kidding, right? Throw it on the pile.
Don’t get a job with Scientology if you want conventional health insurance.
If having to pay a copay is anti-woman, then my God! There is a real war on women going on! Do you know I had to pay a copay for my asthma medicine recently??? And that, thanks to Obamacare, the best asthma medicine that does not make feel like I’m having a heart attack is no longer on formulary?
Egad! I pay copays on any medication that is not reproductive! I’m a victim! I want my premiums to increase 100 fold so that I can say that I don’t pay a copay for anything! Brilliant!
Annie – the war on women is coming from the left. Today we had an attack on Schlay. The other day is was an attack on Palin. We have Hillary attacking the women who Bill went to bed with. We have Warren attacking the women who have questioned her questionable ancestry.
Unintended consequences? Like making a law that allows one to break the law on religious grounds, because Native Americans were arrested for smoking peyote? And now being incensed that other religions are now able to avoid a law?
oops illustrates
And, lest anyone else be so easily led, Hobby Lobby is not out to make birth control illegal or not available. They just don’t want to pay for the morning after pill. And in states where Obamacare covers abortion, there are employers who don’t want those policies, either.
Sorry to disappoint you, but the real war on women is making health insurance unaffordable for middle class women.
Annie and Elaine, i thought the country had moved beyond Phylis Schafly at one time but it seems we have returned to that type of thinking.. The elections in 2010 were pivotal in that many states since then have passed numerous anti-woman laws.