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. “I don’t want to pay for your prostate exam, Believer. So there.” And why should you be forced to buy a policy that covers prostates if you don’t want one? It makes no more sense than the law requiring me, in an individual policy, to cover hysterectomies, since I don’t have a uterus, have never had a uterus and have no intention of ever getting one. Why shouldn’t I, in a free society, be allowed to choose to buy an individual policy that covers only what I want to pay for? And why, in a free society, shouldn’t an insurance company be allowed to sell an individual policy that only covers what the insurance company wants to cover and that the policy holder wants coverage for?

  2. I agree that the Supreme Court should be expanded. The Court ought to be handling more cases but can’t the way it’s currently situated. I believe there should be one Justice for each Federal circuit. I would also suggest there should be a few more circuits. I would then consider a “full court” to be any nine judges. A case should be heard before the Justice who represents the circuit from which the case originated (unless recused for some reason) and eight other judges chosen at random. Requiring the entire membership of a court expanded in the manner I suggest would be all but impossible. My suggestion would allow the court to expand its work but also increase the diversity of justices.

  3. @nicks

    I ‘m not much into labels. I used to think I had more brains than most men, but now believe that it is just that I see things in a different way being an INTP.

    Squeeky Fromm
    Girl Reporter

  4. Squeeky, You are obviously not a feminist. You don’t see yourself as a victim of some horrible war. Too many whiners in the US. Good to see the strong women here not seeing themselves as victims. It used to be just whining “Whoa is me” type before you folks got here.

  5. No Paul, they probably end up dead or in jail or go on to perpetuate abuse. They probably don’t get the education to be remotely interested in politics.

    1. Annie – children are resilient. They neither end up dead or in jail or become abusers themselves. They become regular citizens who vote, pay their taxes, live next door to your, etc.

  6. Well, here is how I see it:

    Person A : I don ‘t want to pay for you abortion.

    Person B : You ‘re trying to cram your Christianity /religion down my throat!!!

    Justices A – E : Well, they ‘re paying for 16 out of 20, and those 4 do keep fertilized eggs from attaching. . .soooo OK!

    Justice G : You don ‘t understand woooommmmmeeennn!

    Person B: You ‘re telling these HL people they can cram their Christianity /religion down my throat!!!!


    That is how I see this. Histrionics and really dumb statement by Justice G.

    Squeeky Fromm
    Girl Reporter

  7. Jill it appears that we must be grateful that we women who live in the US aren’t treated similarly to third world women. We mustn’t complain, shhhhh.

  8. “Clampdown on the rights of women???” There are hundreds of millions of women in 3rd world countries w/ NO rights. There are routine posts here of the horrors women in Muslim countries endure. It is the height of self indulgence and insensitivity to compare this SCOTUS decision w/ the real clampdown on women. Incredible. Meriam Ibrahim would throw up if she read that comment.

  9. Samantha, they would grow up IF they survived their childhood. what happens to children who are unwanted, abused, mistreated? Do they grow up normally? Do their brains develop normally? Are there lasting consequences to child abuse and neglect?

    1. Annie
      Samantha, they would grow up IF they survived their childhood. what happens to children who are unwanted, abused, mistreated? Do they grow up normally? Do their brains develop normally? Are there lasting consequences to child abuse and neglect?

      Yes, there are lasting consequences. They become progressives.

  10. Look, we have 350 million people in this country. What if a dictator had decided that we should have all been aborted, because he was worried that there would be no one to take care of us? Well, no one in the world takes care of us. We take care of ourselves. Aborted babies would otherwise grow up to take care of themselves, too, as doctors, farmers, truck drivers, they would all contribute, the same as we all do now. It’s a pretty lame argument to kill 50 million fetuses because you believe in thinking like a murdering dictator.

  11. Annie,

    Historically when a society careens out of control, and ours certainly is doing that, we see a clampdown on the rights of women. Women become scapegoats for the actions of corrupt politicians, a bad economy and so on. Women have been considered polluted and unclean in many cultural/religious traditions. It is that very attitude that allows the general society to focus their fear and hatred on a group which is at worst despised and at best,considered to be of less worth than others in that society. This happens to women and other disenfranchised groups. It is an ugly aspect of human societies but it does occur regularly under times of extreme stress in the society.

    The way out is to recognize the truth of what is actually happening in a society. This would mean stopping the powerful from defining problems.

  12. I’m addressing all the nutty things thrown at women who believe they have the right to health care, Karen. The conversation has weaved its way in and out of birth control and abortion and corporations who want to be religious persons.

  13. Karen, A zygote is not an embryo and and embryo is not a zygote. It take about 18 days for the zygote to develop into an embryo.

  14. Annie – you are making an argument for abortion, but that’s not the issue.

    The issue is whether people should be forced to pay for either abortion or medications like Plan B for their employees. Not whether abortions save money. Any argument pro-abortion just explains why you set your own limit for 21 weeks. Every single person has their own private list of reasons for why they have their own code for or against abortion, or its limits. It’s irrelevant.

  15. Jill I agree, yet what we are seeing is birth control and women who use it demonized. Why all the pushback to birth control?

  16. bettykath – yes, I understand biology. It is called an embryo from fertilization until 8 weeks.

    What’s your point? To you it’s just a cell. Which is great. You have the right to believe that Plan B is OK to use. It is also alive, with its own unique DNA. It is considered an embryo. If you believe that the destruction of an embryo, at any gestation, including pre-implantation, is the destruction of life, then that’s your right, too.

  17. on 1, August 6, 2014 at 8:46 pmsamantha
    Appleton, that is quite a leap, making the assumption that a zygote is not sentient. How about trying to prove that to us?

    Whaaaaat? Oy.

    1. Annie – Oy is not the correct answer to the question asked of Mike.

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