I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues and even pending matters before the Court. I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. I have called this trend the “rise of the celebrity justice.” Recently, Justice Ginsburg started another firestorm over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Ginsburg apologized for that latest public controversy, though I discussed in a column how the incident spoke to a much larger problem on the Court. While she express “regret” in that instance, it did not deter Ginsburg in continuing to speak publicly and hold forth on contemporary issues, though she did make a curious distinction on this occasion.
Ginsburg was back to public speaking in a new interview with Yahoo Global News Anchor Katie Couric. While it is not clear if different sporting federations will move to stop the demonstrations (and thus the issue could come before the Court), Ginsburg did not hesitate to condemn the decision of various athletes to refuse to stand for the national anthem before games, including San Francisco 49ers quarterback Colin Kaepernick. Ginsburg said that “I think it’s really dumb of them.” She then added “Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act.”
I happen to agree with Ginsburg’s view on this and a number of other issues. However, once again, having a justice opining on political and social controversies (which could come directly or indirectly before her Court) is reckless and undisciplined. Nevertheless, Couric led Ginsburg on a discussion of possible free speech defenses: “But when it comes to these football players, you may find their actions offensive, but what you’re saying is, it’s within their rights to exercise those actions?”
“Yes,” replied Ginsburg. “If they want to be stupid, there’s no law that should be preventive. If they want to be arrogant, there’s no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.”
Ginsburg was more restrained when Couric returned her to the subject of her prior controversy: Trump. Couric asked her about Trump’s proposal and asked “Can you ban an entire religious group from entering the country? Is that constitutional?” asked Couric.
Ginsburg declined and said “I think the question you ask is a question that could come before this court. I can’t answer a hypothetical question when it may turn into a real question. I can’t preview my decision.” However, Couric only had to mention Ginsburg’s book, “My Own Words,” and signs against Jews to induce a response. Ginsburg said “All I can say is I am sensitive to discrimination on any basis because I have experienced that upset. … I looked at that sign, and I said, ‘I am a Jew, but I’m an American, and Americans are not supposed to say such things. America is known as a country that welcomes people to its shores. All kinds of people. The image of the Statue of Liberty with Emma Lazarus’ famous poem. She lifts her lamp and welcomes people to the golden shore, where they will not experience prejudice because of the color of their skin, the religious faith that they follow.” She then added “It’s distressing, but I am also hopeful that it will go away.” That does not seem to leave much ambiguity on the Justice’s views of Trump or his proposal. She then added a distinctly different view of Trump’s running mate with a not so hidden jab at Trump: “For me, it’s very refreshing to see a woman with the knowledge that she has, with the poise and the — command of language.”
Ginsburg also, again, criticized the Senate for not moving on the nomination of Merrick Garland. She noted that, with her nomination, “Any senator could have put a hold on me and kept — kept the confirmation going into the fall, but they didn’t. I think they all appreciated the value of the court starting out the term with a full house.”
Despite my respect for Justice Ginsburg as a jurist, it is distressing to continue to see her penchant for public commentary on legal, political, and social controversy. It is part of a growing pattern that has undermined the integrity of the Court and demonstrates the lunacy of a Court that maintains that justices must be their own judges of ethical misconduct. In the past, justices have dismissed ethical rules like they are pesky matters for lesser jurists. Various justices have ruled in cases where they have clear financial interests. Justices also speak publicly on matters before the Court — thrilling ideological groups. Others have been accused of reporting violations. Others have appeared at political fundraisers. Many justices have embraced the celebrity status by appearing before a type of ideological base where they throw red meat to ecstatic liberal or conservative groups. This includes speaking on issues before or coming to the Court. It has to end. Congress has to act.
I have long favored the tradition model of jurists like former Justice John Paul Stevens who spoke primarily through his opinions and avoided public speeches of this kind. That should be the price of the ticket to be a member of this Court. If you want to be a celebrity, other professional opportunities can be easily pursued. If you want to be one of nine, you should speak through your opinions.