Ginsburg: Male Justices Do Not Understand Issues Affecting Women In Hobby Lobby

225px-ruth_bader_ginsburg_scotus_photo_portraitSupreme 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.

scaliaI 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.

449 thoughts on “Ginsburg: Male Justices Do Not Understand Issues Affecting Women In Hobby Lobby”

  1. Abortion is the most common medical procedure performed in the world. This means, at this time, women all over the world turn to abortion because they need to. I find great contempt for women in calling an abortion a convenience abortion. Let’s look at what convenience would mean if applied to forcing everyone to legally provide a kidney or liver tissue transplant,

    The medical technology now exists to tissue match every person for a kidney and liver transplant. Why not legally mandate that match? When a person in need is identified, the donor must provide the kidney or part of their liver. It does not matter what the life circumstances of the donor may be at the time. Perhaps they need that job, schooling, have to take care of children or elderly parents. Perhaps they are ill themselves. No matter, at their own expense, they ought to donate the tissue and an kidney. Why isn’t this mandated by law?

    My approach would make the desperate need for abortion much less through access to birth control, though teaching men and women to respect our bodies and each other and stop the hatred of sexuality taught in many religions. I would love to see more male contraception and much more effective, non chemical contraception for women. Some people in the pro and anti abortion rights movement work towards this common goal. I think that is the finest approach we can take. In the meantime, women do need access to safe, legal abortions.

  2. Appleton, that is quite a leap, making the assumption that a zygote is not sentient. How about trying to prove that to us?

  3. Karen, don’t get carried away. There are consequences to everything we do. Seriously how do you think the millions of babies would be taken care of? If the mother would’ve aborted it, do you think she’d be a good mother? You think she miraculously would want and love the child? In some rare cases, yes. Realistically, in most cases, no.

  4. Karen, …. preventing the implantation of a fertilized zygote. That is the destruction of an embryo.

    No, Karen. You cannot fertilize a zygote. A zygote is a fertilized egg. A zygote is NOT an embryo. Preventing the implantation of a zygote, is just that, one cell that is eliminated by the body.

    Samantha, You can call it whatever you want but that doesn’t make it so.

  5. What a great argument! According to your logic, Annie, we should allow infanticide of newborns because it will save money! Otherwise, there would be unintended consequences of higher taxes. Because obviously a fiscal conservative, like me, has to apply money to every argument, right?


  6. Karen,
    No wilder than pro life ideologists, who haven’t thought through the real world consequences. Making a zygote a person is nothing more than NUTS.

  7. Ah, yes, there’s the old argument that if anyone opposes abortion they can only have the right to that opinion if they adopt 16 babies.

    I oppose infanticide. I have never adopted a child. Do I have the right to object to smothering a newborn in a plastic bag? Because that’s the logic of your argument. Or the old, criminalizing abortion will cost more money.

    Hobby Lobby does not criminalize abortion or the 4 contraceptives in question. They are still legal. It allows employers the right not to pay for it. Perhaps someone should explain this to Pelosi, who got some Pinnochios for her own wild misstatements.

  8. Annie – that is a wild statement. So, now if we don’t have Plan B free without a copay we’ll have the pregnancy police? We already disallow late term abortion in many states. Hence the grisly arrest of Dr Gosnell, who was convicted of not only aborting viable infants, but also severing the spinal cord of infants the moment after they drew breath. Is that “pregnancy police” wrong for you?

    1. Karen – the think that should be ‘the arrest of the grisley Dr. Gosnell. serial murderer.

  9. How about the reality of millions of unwanted babies being born? All you folks ready to pay more taxes for the huge increase in AFDC? Ah those unintended consequences.

    1. Annie – are you on the payroll of Planned Parenthood? You could not state their objectives better if you were the executive director. Have an original thought once in awhile.

  10. Annie:

    As I have explained ad nauseum, it does not matter what your own personal limit is, or whether there is movement or senses.

    If someone believes that the destruction of a healthy embryo is wrong at any gestation, then that is their moral belief. The “any gestation” part is what makes any argument about sensory capacity meaningless. The embryo is alive, and has unique DNA, according to the biological definitions of those terms. Plan B ends that life, according to the manufacturer itself. “Alive” does not mean self aware, sentient, self supporting, responsive, or with a college degree in biology.

    I do not personally have a problem with Plan B. But I understand that other people have a right to their own opinion.

    Your own personal limit is 21 weeks. What if you started a business, and the government forced you to provide free late term abortions at 40 weeks to your employees? Or selective female abortions at 40 weeks? Do you think possibly you might have a problem, and might speak out? What if people said you were “wrong” to feel that way? Would it change your mind?

    Probably not.

  11. Karen, you fear big government and overly intrusive government. If abortion at any stage becomes illegal, how would you think the prohibition should be enforced? Should every miscarriage be investigated to make sure I wasn’t an abortion? Perhaps by the Pregnancy Police?

  12. Mike A – zygote is a biological term that refers to gestational stage. It is alive in the biological definition of the term. It is dependent on the mother at this stage. It’s DNA already defines it as male or female, genetically speaking. Pre-sentient would be more accurate, as the inference is there for growth and development. And as has been pointed out before, movement and response to stimuli develops rapidly.

    Everyone has their own limit for abortion. The problem with government mandating certain coverages, is that now pretty much everyone will have those limits tested.

    In some states, late term abortions are allowed, but not in others. So employers in states with Obamacare policies that allow abortion, this can create some legal ethical problems.

    Now, before, there was choice in the marketplace. Consumer demand drove the choices. Employers merely chose a plan that fit their budget and values, and employees either accepted it or declined coverage, and got their own insurance.

    Simple. Free. Direct.

  13. Karen, I am aware that the vast majority of people do not approve of late term abortion and rightfully so. My own personal preference should be to legally limit abortions up to the 21 st week or so. A zygote is not a person, has no brain, no nervous system, does not feeI pain.

  14. samantha:

    No, a zygote is referred to as a person only by those who have already determined in their own minds that they will call a non-sentient cell a person. The argument from potentiality would apply with equal force to the sperm and ovum.

  15. Annie:

    “The four forms HL prohibits are not abortifacients.”

    I don’t know how I can make this more clear. The package inserts, and the government’s own brief in this case, all clearly state that they can work by preventing the implantation of a fertilized zygote. That is the destruction of an embryo. It does not matter if it has brain waves yet or a heart beat, or how big it is. If your morality states that destroying a healthy embryo at any gestation is morally repugnant, than that’s how you feel. A sperm does not have unique DNA. It is not an individual. A zygote has completely different DNA than either parent. It is an individual, and we all existed on this tiny scale at one time. Some people qualify their objections on a range of criteria, such as whether it can move, or feel pain, or be viable, or whether it’s drawn breath. Almost everyone has their own personal code. And the vast majority of people do have one on limiting abortion. Very, very few people believe it should be legal up until the split second a child draws breath.

    The point is not whether you agree with them or not. The point is that this is what they believe. That killing a zygote is murder, whether it can think or feel yet or not. And being in the health services, you should understand that a heart beat and movement and response to stimulus do develop very rapidly. So your limit might be farther than theirs, but you likely do have a limit.

    The more intrusive government becomes, the more choices they remove, the less freedom we have as individuals.

    Women have the freedom to buy Plan B. But not everyone feels comfortable with buying it for them. As of 2 years ago, it was not mandated to buy it for them, and it was not on every insurance policy, and yet I defy you to come up with any woman who felt actually abused by the system.

    1. I do not know that this is true, or urban legend, but supposedly during the 1960s if you were in the military and caught masturbating, you could be charged with destroying government property.

  16. Paul C. Schulte, “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.”

    Paul, You make my point. Pap smears and mammograms are standard unless declined. I suspect you could decline the prostrate exam if you wanted to.

    1. bettykath – well prostate exams usually don’t start until you reach a certain age. After that it is foolish not to have them. Unless the doctor is doing the mammogram in the office, it is not a standard part of your checkup.

  17. bettykath, a zygote is referred to a person because it has potential to be a baby. You have potential to live to be a centenarian, but not if someone offs you. And just because you are not yet a centenarian, does not mean you are not a person now. It’s not complicated.

    I’m not sure it was Roseanne Barr or not, because I’ve never seen any of those shows. I just read about it somewhere.

  18. Bob – it is usually considered bad form to look people up, so I am only doing this at your request.

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