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.
And there’s the guilt of an older child who reports abuse and it is “investigated” by one visit where the parents deny the abuse. Nothing is done to stop the abuse and there are younger siblings.
One Day at a Time December 16, 1975, until May 28, 1984. It starred Bonnie Franklin as Ann Romano, a divorced mother who moves to Indianapolis with her two teenage daughters, Julie and Barbara Cooper (Mackenzie Phillips, Valerie Bertinelli). Pat Harrington plays Dwayne Schneider, often simply “Schneider”, their building superintendent.
Mackenzie Phillips’ father was John Phillips of the MaMas and the PaPas.
bettykath – Phillips was cut from the show for either her behavior and/or substance abuse.
Mike – as you know I am agnostic, but I do believe that personhood begins at conception. There is no loving or vengeful God involved anywhere. It is to me, pure science. Some make it, some don’t. It is like sperm, only one lucky sperm (generally speaking) gets to fertilize the egg. What made that one the best swimmer in the bunch?
Jill, so what you are saying is that the accused have no rights even when the victim is a criminal? That is what you are saying!
Nick.
The Wenatchee child abuse prosecutions in Wenatchee, Washington , USA, also known as the “Wenatchee Witch Hunt”, that occurred in 1994 and 1995, are examples of the child sex-ring hysteria that was prevalent in the late 1980s and early 1990s, and led to over three hundred sex-ring prosecutions in all but four states in the U.S. [1][2]
http://en.m.wikipedia.org/wiki/Wenatchee_child_abuse_prosecutions
Mike – what science would you find acceptable? Which scientists would we call on?
bettykath:
I agree completely, The notion of personhood at conception makes no sense. And if one is religious, it means we serve a loving God who permits a majority of us to perish without an opportunity to be born even once, let alone again.
Jill – what the churches was doing was common in the schools as well. Instead of firing teachers they would let them resign and give them a good recommendation to the next school so it did not tarnish their school. NY has a ton of teachers in what is called the ‘rubber room’ who cannot be fired because of tenure laws. Many of them are there on sexual abuse or harassment charges.
Paul Schulte:
That’s not what I said. I said that it is a legal issue (as opposed to a religious issue). I also said that the determination should be based upon reason and science. But that does not mean that I want the issue to be decided by judges, Ideally, we would legislatively adopt a national definition of personhood. My view is that the definition should be related to that stage of neural development at which consciousness becomes possible.
And technically, no court has actually said that personhood is a function of viability. Instead courts have held that the state may assert an interest in the life of the fetus at the point of viability which will usually (but not always) override the interest of the mother.
bettykath – I am amazed at the number of women who do not understand men’s issues. Actually, I am amazed at the number on this blog who don’t understand a simple prostate exam is part of your annual physical, not extra like a pap smear or mammogram.
Yes indeed, there is a lot of documentation by priests and their higher ups on those abuse cases. Unless we are claiming that the priests, bishops, cardinals and popes just wrote stuff down and hid it from law enforcement because it was all false testimony, it starts to get a little hard to ignore the corroboration of the victim’s testimony by the abusers. But by god, I’m sure some can ignore it!
One of the daughters has a recurring role on Big Bang Theory. And Leonard was on the show as a boyfriend.
I have stopped being surprised when men don’t understand the issues that are important to women. But I’m astounded that there are women on this blog who either don’t understand, or are intolerant of the demands, of other women for equal treatment. It’s refreshing to read the men and women who do understand,
Why is a zygote being called a child? or a baby? It’s just a few cells not yet in the parasitic relationship that will allow it to grow into a blastocyst, then an embryo, and later into a fetus and, eventually, months later, into a baby. And it should have greater rights than the fully developed woman who may not want to be the host of the parasite?
Researchers estimate that nearly 60 percent of all naturally occurring conceptions fail because the zygote never becomes properly implanted in the uterus. The rate may actually be higher considering the number of zygotes in the fertility labs that never get used.
Paul,
“So, the next question is, do you know the meaning of science?”
To spare me the pain of hearing you tell me the meaning of science, google ‘robert kauten,’ if you’re feeling ambitious.
Get back to me, if you still have questions. Please don’t live up to my expectations.
Bob – are you the technical writer one?
No, She had the great blue collar sitcom w/ John Goodman called, Roseanne. Laurie Metcalf played her sister. There were 2 daughters but neither were Phillips.
Paul, that is exactly what I addressed above. This has been studied at length. In each case you find victims are less likely to remember cases of abuse which had actually been documented by outside observers than they are to make up false claims. For example, when young children were taken to the hospital and had copious physical evidence recorded at length on their charts, many victims had no memory of their abuse.
The real problem is not so called FMS but the fact that sexual abuse is widespread and victims are often silenced by members of our society who do not wish to come to terms with the common abuse of children.
@samantha
Roseanne Barr??? She had a TV show with McKenzie IIRC.
Squeeky Fromm
Girl Reporter
Roseanne Barr. A very funny, very troubled, woman.
Nick – Barr is very troubled but I never thought her very funny. Her show ripped off Married with Children. You would see it on Married with Children and then later on her show.
Samantha, Were those recovered memory cases? I was hired by a prominent doctor who’s daughter accused him of sexually abusing her. She was being treated by a female shrink who used that controversial technique. I can’t say for certain, but the facts I found did not support the daughter’s claim. The father was truly devastated. Now, that is not dispositive. But I got to know him pretty well during my 3 month investigation. Combine my take and the facts, and I think this was bogus. About 5 years later, the shrink was sued and lost a civil case where she ruined a family on a bogus recovery memory therapy. I am TOUGH on sexual abuse. I helped prosecute many and worked a large priest sexual abuse civil case. But, this recovered memory is a lot of hocus pocus.
Squeeky, the name Barr seems to come to mind, but I don’t recall the first name.
The children who were victims–and they are legion–of sexual abuse by members of the Catholic clergy didn’t suffer from “false memory syndrome.”