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.
Nick,
I didn’t get personal. You’re the one who is attempting to make it personal. In addition, you just admitted that you don’t like me. You’re also telling me what to do. What next?
Nick, who is that fat actress who accused her father of sexually abusing her, in public for chissakes, after she’d been silent for like 20 years?
Did you catch where someone thought I was making the case for a war on men?
Nick, Feminism is the call for women and men to be treated and valued equally in a society. Like all movements, there are idiots within it. So yes, there are women who won’t even allow male babies into their gatherings. That has got to be one of the more mean spirited, dopey things I have ever seen. It appears to mirror the idea of christian original sin. When I went to church my minister always used to say it was a real statement about a person who looked at a baby and saw evil. He could never believe in that doctrine.
On the other hand, it isn’t necessary for women to love men. It is necessary for us to act justly towards men and we call on men to act justly towards us. We don’t live in that society yet, but it’s a worthy goal.
P.S. There are actually 5 human genders, not two. I think if more people recognized that reality, things would get better. As it is, we have very strict rules about how the 2 human genders are supposed to act. Never mind that there are 5 genders and the 2 don’t differ that much in the first place! (See Janice Raymond for a really good exploration of the 5 genders of humanity.)
A zygote has no brain activity.
Elaine, Moi?? I have a great relationship w/ leej. I have a respectful albeit thorny one w/ SWM. Let’s stay away from the personal. We don’t like each other. My dislike has NOTHING to do w/ your sex or politics. Now, get back to substance.. Any thoughts on Paglia. I don’t agree w/ everything she says. But she is intellectually honest. Those 2 words are like I’m speaking in tongues w/ some people. I seek out people w/ whom I disagree, male and female. Some prefer echo chambers.
http://www.aopo.org/brain-death-a68
Jack, educate yourself.
Samantha, One of the disrespected relationships is the one between father and daughter. So many women who hate men had abusive, physically and/or sexually, fathers. It controls their dysfunctional lives. Some even have homicidal fantasies. Paglia grew up in an Italian immigrant family. Men worked hard, were loving and affectionate, and honorable. The father is the template for men throughout a daughters life. So, unlike too many feminists who consider their movement a war on men, the Paglia school respects and love men. Her intellectual and brutal honesty is scary to the women’s studies ilk.
It’s funny how some men who claim to like and admire strong women appear to like and admire only the women who agree with them on political, social, health, and religious issues. Very interesting!
Elaine – and it is funny how some women really hate men while pretending to like men. Odd, how it happens.
Annie,
“Jack, in every state in this country we already determine human life by brain activity. No brain activity, not alive, hence disconnecting from Life Support.”
Wow! You must really be grasping at straws. No state has no brain activity as “not alive”. Not one! What they have is the complete and irreversible loss of brain function (including involuntary activity necessary to sustain life). That is clearly distinguished from the beginning of life in which brain function is expected to improve/develop over time.
Paul, you have ceased to make any sense at all, hope that wasn’t uncivil. You’re back on ignore.
Annie – I bring up some factual information that flies if the face your your previously held misconceptions and I do not make sense? Really????
Annie – thought you might be interested in this. Seems to belie some of your stance.
http://msgboard.snopes.com/cgi-bin/ultimatebb.cgi?ubb=get_topic;f=76;t=001555;p=0
Karen S, excellent comment about wage disparity.
Nick, Paglia has a lot of intellectual honesty, something that does not make her very popular amongst the militant lefties.
Squeeky, do you know that you can break a rib by putting someone in stitches?
Men got aids from prostitutes and vice versa. Men then infect their wives. That is how MOST AIDs cases were spread in Africa.
Annie – that still has nothing to do with virgins.
Samantha, Great heartfelt comment. Thanks.
So Samantha, your mother didn’t sacrifice for you too?
Annie – AIDS usually increases in the male homosexual population first. This would have nothing to do with abstinence for young women.
nick, Jill was here long before I was. She is not a Schaffly channeller. She seems to think it is unfortunate that the red blue divide exists.but threads like this clearly illustrate the existence of a deep divide.
Jack, in every state in this country we already determine human life by brain activity. No brain activity, not alive, hence disconnecting from Life Support.
John,
I responded to you. You didn’t like my response. So be it. I don’t let other people tell me how I should respond to their questions. I think you perceived the video in a different light than I. I thought it was funny. It also showed how some men still perceive highly educated, liberated, articulate, competent women as mere sex objects and/or people who are not their equals. Some fellows haven’t grown with the times. Such is life.
My dad once mentioned a good idea. Men and women should start doing something that is a variation on trading prisoners. Men should not fight and die for their country, unless women are willing to give up something in return, not just shop, get their nails done, pass the time in air conditioned offices, watch DeGeneres, turn out litters of babies, half more of which they abort, while many of the men who would not be fighting are unemployed, homeless, addicts, mentally ill, suicidal. Maybe men should let women fix their own cars, build their own houses, grow their own food, unless they are willing to advance the causes of men, too. He can be very facetious, but when it comes to feminist worldview that is lopsided when contrasted with the graveyard of men who have fought and died, worked their asses off to put this country together, then turned every dime of their labor over to their families… Sure, women have done the same thing, only their graveyard has one headstone for every 100 of men’s. One could probably make a good argument that female ingratitude is the source of a lot of male-on-female violence. And female-on-male violence, which Warren Ferrell has argued is equal to male-on-female violence, has to do with the frustrations that come with stubborn unwillingness to recognize men’s contributions.
As a child I remember one christmas day that I spent in my room alone, unwilling to spend time with family and relatives gathered in the house around the Christmas tree, preferring time alone to exchanging gifts, looking out the frosted window, unable to understand that out there in the blizzard 300 miles from home, was Dad managing a project that somehow had more priority for his clients than for time with his family. Even today I can bring tears to my eyes on command whenever I think of that day. And ever since, I’ve never taken men’s contributions for granted, much less the contributions and suffering of the 80% who can no longer earn a living wage without some form of public assistance. Whenever I am out and about and see, say, a lineman working, I conjure the thought of a man who is probably supporting a family, has kids in school, using every last dollar to make ends meet, and never complaining — and probably has a brother in the military fighting in Afghanistan.
And there is a war on women? My ass.