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.
I’ve never traveled to visit “liberal” or “conservative” friends. I just traveled to visit friends. Maybe that’s because I like, enjoy, and respect people with whom I disagree on any number of things. My beliefs are not so fragile as to be threatened by those who hold different views. That’s not to say that I don’t know people who could not be friends with those with whom they disagree on substantive issues. That’s all part of respecting and recognizing that we all form our opinions based on different life experiences.
Annie – my mother was ABD, if you know what that means and I was raised around and have been attracted to strong, bright women. Many of my good friends are liberal, including my wife. We do speak of other things than politics, though. 🙂 Because there is a great wide-world outside politics.
SWM, I watched the documentary “Jesus Loves Uganda” on Netflix last night. It was chilling. I’ve seen that sort of zealotry growing up in the Pentecostal church. I could barely get through that film, but it’s worth watching, a Ugandan minister narrates much of it. He hits the nail on the head regarding American conservative evangelical missionaries. Truly chilling.
Annie – regarding your Netflix viewing – glad to see you are so open-minded.
@swm
Oh my goodness, how is it any harder to be a woman in Texas as opposed to anywhere else??? And over in East Texas, away from all the traffic and noise, life is quite pleasant!
Squeeky Fromm
Girl Reporter
Elaine M.,
Thank you. I thoroughly enjoyed that video. Seriously.
Can you explain why women/minorities need affirmative action, considering the superiority revealed in the video, with emphasis on the relevance of the admonition that thou shalt not covet, which, presumably, means one should start one’s own business rather than rail and strike as the help to another’s firm? One can surmise that the Founders established freedom, which by definition is neutrality, an absence of bias or affirmative action in any direction.
Squeeky, I’m in stitches from your Paul Revere figure.
Old battle scarred warriors like Ginsberg should just move over, make room for some fresh blood, women without all that sixty’s baggage, who regard themselves not in competition with men but as their equals. A young, modern woman today has to be really over socialized to identify with one of these old axe grinders who can’t or won’t let go. Young women and adolescent girls are not all buying the old feminist talking points, much of which they see as irrelevant today. There are far more pressing things, such as preparing for a career and surviving in a world with very limited opportunity, gone crazy by tax and spend loonies.
Annie, there are mega churches everywhere and raging preachers on the radio coupled with right wing talk hosts blabbing about liberals. Additionally, they now have right to carry gun nuts bringing their guns into restaurants and terrorizing people.
Samantha, “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.”
………
Women are over represented? Where? Women are roughly one half of the population. There are three women on the SC, six men. White House? There have been 44 Presidents, none of them women. Congress? There are 535 seats, 98 held by women, 437 held by men, 17% women, 83% men.
There are enough “sexist sins” in this generation, we don’t have to go back. Actually, it’s mostly a continuation of the “sexist sins” of the past.
Males gave women the right to vote only after decades of women exerting pressure on them. The men held out for more than a century. 1789 to 1920.
I support reparations for Blacks, mostly because of the government imposed economic barriers, e.g. redlining that prevented home ownership.
More men in prison? Well, maybe. Fewer in number but a different set. Release those for minor drug possessions (not distribution). Replace them with the banksters that committed fraud with their derivative mortgage packages.
SWM, I do hate most of Texas with a passion. It’s hotter ‘n hell in summer. I’ve been to Austin to visit liberal friends there, it’s the only place worth visiting in Texas, IMO.
Satanists ARE coming! 😯
The high today in Dallas is supposed to be 98 and humid. I guess it is not that hot for there, Annie. You would hate living in Texas. Well, maybe not Austin, but you are still living under the anti- woman laws that Rick Perry and the Texas legislature enacted. Oh well, Perry is retiring and the new crop of tea partyers appear to be even worse. Glad we left but miss some liberal friends there.
http://abcnews.go.com/Politics/satanists-hobby-lobby-decision-play-devils-advocate/story?id=24772548
Squeeky, one of those unintended consequences. The Satanists are coming! The Satanists at coming! 😯
Annie – I am quite fond of women. Just because I don’t kiss all their **ses does’t mean I am a misogynist.
@annie
Oh, the weather in Texas is great! The days aren’t too hot yet, and we even had a cool spell last week. The grass is green and the hummingbirds are humming! Thank you for asking!
Now, as for the corporations, you will notice that the court restricted their decision to relatively closely held corporations. That is because those corporations are more personal to the stockholders. The court also looked at the fact that 16 more birth control pills were allowed. That is the proper framework to analyze the decision, not your hysterical “The Christians Are Coming! The Christians Are Coming!” method.
There is no indication the court would have permitted a widespread refusal to provide birth control pills, or that necessary blood transfusions would be refused. Those are products of your own fevered imagination colored by your obvious anti-Christian bias..
Squeeky Fromm
Girl Reporter
Bettykath, thanks for clearing that up. I’ve put Paul on ignore, it’s just a waste of my time dealing with his misogyny.
Paul C. Schulte, “Annie – I could not agree more. YOU are the one who brought up slut shaming.”
Paul, Annie wasn’t doing any slut shaming. She was just called out what was going on.
=========================
Paul C. Schulte, “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?”
She was pointing out the inequity. The alcohol in contention was the weaker 3.2 beer. Interesting read about Ginburg’s six cases before the SC: http://www.washingtonpost.com/wp-dyn/content/article/2007/08/23/AR2007082300903_pf.html
bettykath – Annie was pointing out what she ‘thought’ to be slut shaming, not what reality was.
The question I was asking is why was Ginsberg taking the case, to save the girls or the boys?
And seriously Squeeky, Hillary Clinton doesn’t represent anything you have espoused here on the Turley blog. What confused reality do you live in to think she represents your worldview?
Squeeky, the issue here is that a Corporation wants to be a person with the rights of a real human person in order to be able to force their employees to abide by the employers religious beliefs. Those four forms of birth control are covered by as a part of a health care group insurance plan. Should blood transfusions for employees be prohibited by Jehovah Witness employers? How is the weather down there where you have stuck your head?
Justice Ginsburg has never been an employer. As such, by her own analysis, she should not weigh in on employer mandates. (And if you want to include all the other justices who have never been employers, I’m fine with that too. After all, until you have been in that situation, you cannot possible have enough information to arrive at a logical conclusion when applying law.)
@annie
You said, ” the discussion here is the obligation of the employer to provide HEALTH care for its women employees and to force their religious beliefs on them.”
No. That is the way YOU and Democratic partisans FRAME the issue in order to advance your own agendas.
HL still provides 16 of the 20 pills; the 4 disputed pills can definitely keep a fertilized egg from attaching to the uterus according to the FDA itself; and there is nothing keeping any HL employee from buying the subject pill herself.
But, by framing the issue that way, YOU get to replay your various anti-Christian biases; the Democrats get to pretend there is a War on Women; and Ginsberg gets to relive her lost youth as a crusader for women’s rights.
Squeeky Fromm
Girl Reporter
I wonder if Ginsberg is like some of those old military people, who are still fighting the wars of their youth. One of my grandfathers wouldn’t buy Japanese cars or anything else until the day he died.
Squeeky Fromm
Girl Reporter
Squeeky – some people are able to forgive, some not.
And an FYI Jack, already born women are human too. They have personhood rights. Their neurological system is fully functional, unlike a zygote.