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.
@samantha
Was it McKenzie Phillips whose father was in the Mamas and Papas???
Squeeky Fromm
Girl Reporter
Squeeky – the Mackenzie Phillips one went on all through her teen years according to her reports.
Laser – 1 in 5 seems a little high. Where are those stats coming from?
@samantha
Oh, I don ‘t want to hurt anybody. Make them spew their drink on the keyboard. . .hmmm. YEAH!
Squeeky Fromm
Girl Reporter
Sexual abuse is not gender dominant. I remember believing, for the longest time – that I was doomed to damnation, for being corrupted at an early age.
Now I belong to a group “One in 5” – because statistics show at least 1 in 5 are sexually abused. A truly deplorable and intolerable stat.
KUDOs to all who face their memories, seeking solace and repair.
samantha,
I don’t know if her father is guilty, nor do you. That isn’t the point. Every abuse victim has a right to speak up at any time, anywhere. The court can adjudicate claims, that is what the legal system is there for.
You are siding with the abuser when you ask abuse victims to be silent. I don’t know if you know this, but people are far more likely to not speak up about what happened to them than they are to make false claims of abuse.
Making a false claim is evil. However, silencing a victim of abuse is also an evil thing to do.
Jill, Thanks for your thoughtful comment. There are indeed idiots in all movements. I married an old school feminist. But, like free thinking people, she has learned and adapted. I love smart, tough, funny, women. We are in total agreement about a society where men act justly toward women.
I have no idea why my response to Annie’s link won’t post. Anne Fausto-Sterling is a great choice! She sums it up in about 1 paragraph!
Jill, no one ever made the case that her father had actually abused her. Have you ever heard of the Wenatchee and the Manhattan Beach cases, where innocent people were convicted and sentenced for child abuse, all based on nothing more than reckless charges? I think 70 innocent families were torn apart in Wenatchee. What if you, yourself, were accused of sexual abuse today, never mind that you have never abused anyone or that you are innocent? Do you want to work that out in private or do you want it to go public? And how much of our attitudes that fathers actually abuse their daughters is based on popular culture that is as reckless as the prosecutors in Wenatchee and Manhattan Beach? As for church abuse, the lion’s share of victims had all their cases resolved without going public. I have a friend who was accused of child abuse, after his wife decided that she didn’t wanna be married to him anymore, and wanted to take the child with her. He was forced to live in an apartment, while she and the baby lived in the home that he was making mortgage payments on. Oh, and it cost him $250,000 to clear his name.
So, why is it that you believe the actress’s father is guilty, while I believe that I don’t know one way or the other?
I’ve seen abused children who were on a pediatric burn unit as a result of child abuse from a parent, cry for their parents. It’s very sad.
Annie, Anne Fausto-Sterling’s work is really articulate and well researched. She is actually a better choice than Janice Raymond. She can lay it out in about one paragraph!
Oy! bronzing= bringing. Time for my break.
Samantha, I don’t know the actress of which you speak. And yes, Samantha w/ the archaic feminists you have a very narrow line to toe. They are irrelevant, but being so insular, they don’t realize it.
Yes it does take great courage Elaine. A child is utterly dependent on their parent for many years and many abused children deeply love their abuser. When they speak up they risk losing everything, including the person whom they love. They risk the hatred of the rest of their family who might like to keep the abuse hidden. That is a lot to take on.
They deserve our encouragement and support, just as you wrote.
*Info*
Jill thanks for bronzing up the five genders of humans! Some interesting onto from PBS.
http://www.pbs.org/wgbh/nova/body/fausto-sterling.html
Jill,
Excellent response to Samantha! It takes great courage for victims of child sexual abuse to speak out years later. They should be encouraged to do so–
not criticized for it.
samantha,
Many women, both fat, thin or of any weight have been abused by a parent, most often by their father, but also by their mother. Just as children who were abused by priests stayed silent for 20 or more years, a person may very well chose to keep silent about sexual abuse by their parent for a very long time. When they are ready to speak out, I’m not certain why you find it offensive that they speak out in public.
We do not ask the victims of priest abuse to stay silent or say nothing publicly. If something happened, it happened. Every victim of child sexual abuse should be encourage to speak up however they wish, whenever they wish.
Would you tell me why you think it is wrong to speak out publicly about the abuse one suffered? What does the number of years have to do with telling the truth about what happened to a person? For example, if one has witnessed a murder, one is able to talk about that, if for example, one had been threatened into not speaking. Why is sexual abuse a case where the victim must remain silent or never go public about their abuser?
Jill – one of the problems with these ‘late’ accusations of abuse is false memory syndrome.
I’d volunteer the fact that I love many men, but I might be called a slut. 😀
Ignorance hasn’t been classified as a disease, has it?
AY – ignorance can be overcome. Stupid is forever.
Jack:
Your statement on the Webster case is incorrect. The Supreme Court did not hold that the preamble to the Missouri statute in question was constitutional. Indeed, the Webster court stated that it was unnecessary to address the constitutionality of Missouri’s definition of human life and expressly declined to do so. Therefore, that case does not support your argument.
Secondly, as I have stated before, the issue is not whether a conceptus is human. Of course it is. Spermatozoa from a male homo sapiens is fully human. An ovum from a female homo sapiens is fully human. But identification with a species does not confer personhood. That is a question of law.
The question properly presented is at what point in the gestational process, if at all, fetal life should be regarded as a person under the law. That decision should be guided by both reason and science, and the matter has never been resolved. Further, in my view the question of personhood is not a matter appropriately to be determined on a case by case basis. Do we really want a situation in which a fetus at, say, seven months is a legal person in California but not in Ohio?
Mike – do we really want appointed judges to decide when personhood exists, regardless of when they decide it? Viability outside the womb seems to be the gold standard with some judges, but not with others.