Ginsburg Declares ERA Dead And Calls For New Campaign

I have long criticized Supreme Court Justice Ruth Bader Ginsburg for making comments on political issues to liberal and academic groups.  While not unique on the Court in what I have called the era of “celebrity justices”, Ginsburg is something of recidivist in abandoning the long-standing avoidance of political discussions by justices as well as issues that are likely to come before the Court.  Despite repeated controversies in speaking publicly on political issues, Ginsburg is clearly undeterred.  This week, Ginsburg tripped both wires in discussing a matter in litigation and heading toward the Court while encouraging what would be a political campaign for a new constitutional amendment. As we have discussed, there is currently litigation over whether the Equal Rights Amendment was ratified by the recent vote in Virginia. Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement. Both statements were inappropriate, but the statement on the status of the amendment was wildly at odds with standards of judicial restraint and ethics.

What is interesting is that Ginsburg was prompted to delve into this political question by a fellow jurist. Judge M. Margaret McKeown of the 9th Circuit Court of Appeals, who asked whether there would ever be an Equal Rights Amendment on the federal level. Ginsburg responded by saying that ERA was expired (the issue currently before the federal courts) and “there is too much controversy about late comers” like Virginia. She declared that Virginia’s move came “long after the deadline passed.” She then added “I would like to see a new beginning. I’d like it to start over.”

The impact was immediate as blogs discussed how to carry out the advice. After all, they just received an effective ruling on the merits of the litigation without a single argument being heard by the Court. I happen to agree with Ginsburg’s view of the expiration of the ERA, but the issue is one of propriety not accuracy.

Such comments have long thrilled admirers, but those same individuals would likely be aggrieved if conservative justices start to give advice on political or legal campaign or issues moving toward the Court. Indeed, I criticized conservatives justices for such comments in the past. Yet, the clear impropriety of such comments are ignored in the media which breathlessly report such comments. A justice is not some oracle who gives advisory opinions or political directions to the faithful. Indeed, a justice should not have a “base” or constituency.

There is an incredible irony in Ginsburg’s repeated comments on politics and legal issues. She is the justice who is credited with the “Ginsburg Rule” where she refused to answer questions during confirmation that might be raised in cases before her.  I have been critical of that rule. However, after being confirmed, Ginsburg regularly discussed the issues that she declined to discuss in the confirmation.

Obviously, I have long been a critic of Supreme Court justices embracing the era of what I have called “the celebrity justice.”  Justices are increasingly appearing before highly ideological groups and inappropriately discussing thinly veiled political subjects or even pending issues. I have been equally critical of other justices, including the late Antonin Scalia, for such comments. She previously called President Trump a “faker.”  Ginsburg remains a notable recidivist in this type of conduct. In a speech in 2017, Ginsburg held forth on the politics of the presidential element and, despite criticism, she did so again in 2018, including her statement that sexist voters prevented Hillary Clinton from being elected president. Ginsburg has shown open hostility toward President Trump and continued to make improper public comments despite repeated objections about the impact of her conduct on the Court. Ginsburg has called Trump “a faker” who “has no consistency about him.”  She has said that “I can’t imagine what the country would be with Donald Trump as our president.” This led to a  letter demanding her recusal from cases (which she refused to do).

While I recognize the iconic status of Justice Ginsburg, this has nothing to do with her extraordinary legacy as a jurist on the Court. It concerns her continued lack of restraint and judgment off the bench. The fact is that, if she were a lower court judge, some of these past comments would have triggered serious judicial ethics issues. However, she is one of nine and thus supreme in the view of the Court in matters of legal ethics. I have previously argued against this position but Congress has done little to challenge it.  So, Ginsburg will hear the case and the ethical objections will be treated as mere suggestions to a court that has shown both total discretion and disdain in past controversies.

I truly have a deep respect for Ginsburg in terms of her cases and jurisprudence. As with Scalia, I remain baffled by this reckless and cavalier attitude toward public speeches and commentary. This should not be an ideological matter. All lawyers and jurists and citizens should object to such public commentary, particularly on an issue being litigated in the federal courts.

70 thoughts on “Ginsburg Declares ERA Dead And Calls For New Campaign”

  1. She needs to just retire. In the warrior idea she can do far more in private life. If you are SCOTUS does not mean you are a slave to the state. Just like any other job.

  2. A justice is not some oracle who gives advisory opinions or political directions to the faithful. Indeed, a justice should not have a “base” or constituency.

    Just as politicians (local/state/federal) should face restrictions on the amount of time they can hold an elective office through the use of strict term limits – judges should never be afforded a gift of lifetime tenure on the bench (political appointees and civil servants too).

    Any person able to remain ensconced within government for decades may unduly accumulate unchecked power and act in a manner that is deleterious to the nation.

  3. In this case Ginzberg is 100% correct. What that late to the finish line State should do is lead the pack for the next one.

  4. I bet Thurgood Marshall would have spoken out in favor of this issue if he was on the bench today.

  5. I think it would be easy for a new ERA to be worded such a way that it paradoxically infringes on the rights of all.

    For example, a 2020 ERA would probably include transgenderism. This could force sports teams and competitions to allow biological males into women’s sports divisions, effectively shutting out biological females from the upper echelons of their own sports divisions. One could easily anticipate an all biological-male women’s weightlifting team, for example. Or track and field. Such a reworked amendment could easily lead to not a single biological female in women’s sports competitions, effectively reducing sports to men’s divisions, and coed.

    It could lead to the closure of all Christian and Muslim businesses who don’t want to bake a pink and blue cake to “celebrate” gender dysphoria.

    I think a new amendment would likely have many unintended consequences. The focus should remain on individual rights. You can do what you want as long as it’s not hurting anyone, but you cannot force everyone to agree with you or participate. Common sense.

    1. Transgender is not the same as gay. It’s just not. At least not to me….I try to be tolerant and compassionate of others view, but I just can’t see it….Idk.

      I don’t think parents should be making these choices for their children so young.

      I had a stint when I was under 5 yo, where I refused to acknowledge any name, but Michael. And would demand everyone call me Michael in my family. So, my mom, caved in, and so did, my dad, and everyone else, “Okay, Michael, let’s go….”

      And then, I grew out of it….bc children change their minds all the time…It is not a fully developed brain….

      This is a side-note to what Karen is saying, but I agree with Karen…

      1. And definitely not against transgenderism…RuPaul is pretty funny guy, and if you want to switch genders, good for you, that’s your business.

        But the Bio males should compete against the Bio females

        And the Bio females should compete against the Bio females

        A Bio male, transforming….against a Bio female, the Bio male will win every time, b/c of to name one thing….for weight lifting, upper body strength, and arm leverage….we know which muscles are strong, the short one, or the long ones……The long ones have more leverage….

        1. Sorry again, RuPaul does drag, he is not transgender, but he is in the LGBTQ+ group.

          I just think a Bio male would demolish a Bio female in most sports.

          So, if a Bio male has transitioned, then you already know who is going to win…

          I think we have seen this is some sports already, some alleged females who demolish other bio females and become super famous and popular.

          Yeah, they’re not fooling me, Skulls & Bones, never lie. I can tell who is who from the eye structure, shoulder width, q-angles on the legs, finger digit ratio….no amount of plastic surgery and implants and injections can hide who is, who….if you have eyes 👀 to see…

  6. The next time republicans hold the Congress, Senate and Presidency, they must impeach and convict Ginsburg for the treasonous acts of failing to support and uphold, and disparaging the U.S. Constitution to a foreign audience at a foreign venue, and failing to submit her request for retirement and persisting in her position, for radical ideological and subjective purposes, not those of objective jurisprudence, while in a state of obvious disease, of physicality and cognition, and diminished capacity.

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