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.
No the discussion here is the obligation of the employer to provide HEALTH care for its women employees and to ot force their religious beliefs on them.
Annie – the discussion here is the Supreme Court majority the law of the land or the Supreme Court minority?
Why is the protection of unborn human life considered to be a “religious view”? As far as I can tell, it has been relegated to that of being a religious view solely for the purpose of constitutional protection.
No religious dogma instructed me to protect and preserve human life. The fact that a human zygote is 1. human and 2. life is based on science. My moral obligation to protect and preserve that life is based on a view that a society that values human life is more likely to protect and preserve all human life at all stages.
However, the discussion here is the obligation of an employer to pay for the employee’s off-the-clock protective equipment.
Ah the new meme, a war on men, along with the war on white people.
Mike A.,
That is exactly what I was alluding to last night sitting at the airport. She is in the best position to know how the system has operated behind closed doors.
I think that it’s time for some review of judicial immunity. I am of the mind set that except for deliberation on cases that the justices files should be subject to the Feeedom of Information. I particularly think that Thomas and his wife that is or was a lobbyist for Heritage Fiundation and Scalia give new meaning for a call for then to no longer have the cloak of immunity.
Yes there were judges before… But we are talking about today….
bettykath, inasmuch as someone had dragged Thomas’s personal life into the discussion, I wanted to see if there was balance in Ginsberg’s. But I didn’t frame my question very well.
As for the sexiest part, I do really believe women are over represented, men’s rights are always under represented. People like Ginsberg, there are far too many in my opinion, give me the eerie feeling that all men must be punished for the sexist sins of previous generations, in the same way that some believe all white people today should be punished for slavery yesterday. If women could just get over it, there’d be far more common ground. After all, it was males who voted to give women the right to vote. Yet there are far too many women who would be all too happy if 50 million more men were in prison, as though far more suffering among men already isn’t enough.
Good sketch on Ginsberg though.
Jill,
“Jack, What do you mean by functioning normally?”
Seriously? You don’t understand how the reproductive works when it is functioning normally?
The plants, herbs, pills, etc. interfere with the normal functionality. That is, they prevent ovulation. Ovulation is a normal function of the ovary. That’s what it is there for.
A great irony in the life of Justice Ginsburg is that she might never have become involved in women’s rights litigation if not for the fact that despite graduating first in her class in both college and law school, she was unable to get a job with a law firm and had to pursue a different career path. Her experience is somewhat similar to that of former Justice Sandra Day O’Connor, who had an equally superb academic record and who was compelled to begin her career as a legal secretary. It should hardly be surprising that these two women have a particularly acute understanding of gender bias.
samantha, “What do we know about Ginsburg’s personal life, other than she is sexist?”
First of all, it isn’t sexist to look out for the rights of people, even if they happen to be women. Secondly, you might want to read the article linked to in JT’s posts re: Katie Couric. Here is an excerpt from that link:
The impact the Hobby Lobby decision will have on women is something she feels in a highly personal way. Before she became a judge, Ginsburg knocked down law after law as a litigator targeting gender discrimination — from a state statute making jury duty optional for women to one that prevented them from being the executors of estates. She won five of the six times that she argued in front of the Supreme Court, and was known for picking incremental, cautious cases that just as often had male plaintiffs as female ones. (For example, she argued that a local law that allowed women to buy alcohol at a younger age than men was discriminatory against men.)
Ginsburg played a huge role in tearing down arbitrary gender distinctions that prevented women from entering certain professions (the law, for one). But she told Couric that one of the most important things a woman needs to get ahead professionally is a caring life partner who is willing to share the work.
The justice knows from personal experience. She was married to her husband, Marty Ginsburg, a tax attorney, for 56 years before he died of cancer in 2010.
“I had a life partner who thought my work was as important as his,” she said. “And I think that made all the difference for me, and Marty was an unusual man. In fact, he was the first boy I knew who cared that I had a brain.”
They shared housekeeping chores and child-rearing duties, while both attending law school.
bettykath – on the girls and alcohol thing, was she upset that girls were getting alcohol to young or that boys were not getting alcohol young enough?
Anon, no misogynistic cretin sightings on this thread, lol…..
Elaine,
I haven’t seen that clip in a very long time. Thanks for posting it — it’s right on the mark. A lot of misogynistic cretins out there. Not here, of course…
Jack, What do you mean by functioning normally? As I said before, women and men have used various forms of birth control throughout history. You can look up written records of the issue to verify what I am saying.
Both women and men may not want to have a child at all or at a certain time. Are you saying that women should not be allowed to choose whether they have a child or if they do, when? If this is what you are saying, why do you feel this way? What is the reason behind what you say?
Again, I feel you do mix up two different instruments, insurance which covers certain things for people depending on the plan and OSHA or state required safety equipment. In the case of sex workers, they definitely need safety protection which would include condoms and birth control.
Paul, have you ever sat down and really talked, honestly, and without judgment to women who had baby after baby? I hope that is exactly what these particular women wanted but really, I can give you plenty of counter examples of women who died in this process or didn’t want to do it but felt god had commanded them to do so. This is arguing from a personal case history and applying it statistically to everyone else (in both our experiences). This is one of the types of argument that are not considered valid.
A valid argument is based on a large sample of women’s outcomes.
Jill – these women were all friends of my family and I knew all of them. They were all happy campers. I am aware that women have died in childbirth. My grandmother did. My mother was 11 at the time and became head of her household. She still wanted 12 children.
Paul C. Schulte
anon – I answer them, but you may not like the answer.
http://jonathanturley.org/2014/08/05/ginsburg-male-justices-do-not-understand-issues-affecting-women-in-hobby-lobby/#comment-1253070
“Answering” with a non-answer isn’t a genuine response, Paul — it’s a reply without any useful information.
Carry on with the little games.
anon – answering with a link to something that I cannot figure out which one it is, is not an answer either. So quit playing games. Grab the statement, quote me and then comment.
What Justice Ginsberg was getting at (among other things) is that it isn’t just Hobby Lobby that now has religious freedom to ignore employment laws. According to Forbes, here are ten more privately held corporations that now have the right to impose their religious views on their employees by not complying with employment laws:
company # of employees
Cargill 140.000
Koch 60,000
Dell 111,300
Bechtel 53,000
Mars 72,000
PricewaterhouseCoopers 184,000
Pilot Flying J 20,000
Publix Supermarkets 158,000
Love’s Travel Stops 10,600
Ernst & Young 175,000
There are 214 more listed:
http://www.forbes.com/largest-private-companies/
And these are only the largest based on revenue.
It seems clear to me that there are some men on the Supreme Court that have more respect for artificial people that real ones, especially when the real ones are women.
bettykath – what you are missing is that the Supreme Court gets to decide what the law is. If those closely held corporations decide to follow the Hobby Lobby decision they can. They are not violating the law.
Paul C. Schulte,
In that case, it would fall upon the subcontractor to provide their own protective equipment unless otherwise negotiated by contract.
When all they have left as an argument is slut shaming, they’ve lost the argument.
Annie – I could not agree more. YOU are the one who brought up slut shaming.
Paul C. Schulte,
If we are talking about the employer paying for the protective equipment for off-the-clock activities, then I think they should be paying for the helmet too. Or the roll cage. Or the goggles, Or the life preserver, ETC…
However, I still have not seen any justification for the employer to be obligated to pay for those things.
And where to do we go from their? Should the employer also pay for the bike? Or for that matter, why not also pay for the hooker/gigalo? After all, we need sex to be healthy. Don’t we all?
Yes Elaine, that is so true, and hysterical.
Squeeky, for women who have sex regularly and are of child bearing age, YES it IS most certainly a part of a woman’s health care. Women who have sex regularly KNOW this.
Annie,
Jill,
There is a big difference with using medicine to fix that which is broken, and medicine used to break that which is functioning normally. Don’t you agree?
Just to be clear; I am only talking about an employer’s obligation to pay for contraception used for an employee’s off-the-clock activity. If the employer is running a chicken ranch in Nevada, I think they should pay for that protective equipment.
Jack – my understanding (and this come from when the feds took over the Mustang Ranch) is that the girls work as independent contractors. So any birth control would be on them. They basically rent space and pay a percentage is my understanding.