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.