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.

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

  1. I guess I’m confused. What “rights” do certain Americans not have that we would need to have an amendment to spell out?

    1. I’m still trying to work that out, too.

      I guess the right for men to barge into women’s showers and to force bakers to custom bake a cake to celebrate delusion? So, basically, some people feel repressed because they do not have the right to repress others.

      https://youtu.be/ZtYU87QNjPw

      1. I hear what you are writing. Our right to discriminate is more important and needs to be preserved to retain true freedom.

        1. Our right to be free, and not to have government force us to create or say anything against our will.

          Is it the government’s purview to take away women’s sports divisions, and make them, biologically, co-ed? Men would dominate both their own sports divisions and women’s as well.

          Is it the government’s purview to force a Christian baker to custom design a pastry celebrating what he knows to be a mental illness? Perhaps next it will be a dog cake to celebrate people who believe they are dogs trapped inside a human body. And, yes, that is a thing.

          Is it the government’s purview to force anyone to utter a single syllable, such as requiring its citizens to learn 75 pronouns?

          is it the government’s purview to force someone to say that being a woman is simply a state of mind, against their will?

          Is say no. When you force someone to say or create something against their will, that is discrimination and tyranny.

          If you cook food or bake pastries, wrapped up and packaged on the shelf, then you can sell that to anyone who comes into your establishment. But no government should force anyone to custom create anything artistic in speech against their will.

          If someone believes that transgenderism is a mental condition with a high rate of suicide, as in anyone who reads the DSM, then the government has no right to force them to say otherwise. Forcing anyone to custom create a celebratory message for a mental disorder is tyrannical.

          Tolerance works both ways. We can be tolerant of people with different opinions, and for those suffering the burden of mental illness. But they must be tolerant that they cannot force everyone to agree with them. And that’s OK.

          When my friend was in college, there was a guy who at the time was referred to as a transvestite. He had a mustache, but he wore dresses. Really girly dresses and mini skirts. He was not in top physical shape. He was like the local character. He was just another (very) quirky student on campus, and accepted as such, but none of the other students were forced to say that he was really a woman because he believed he was.

          Of course gender is not a state of mind. Nor is it performative. A woman can be a tomboy and a man can act feminine, but gender is biological. Those who suffer gender dysphoria deserve compassion and kindness, but that does not extend for forcing anyone to agree with their delusion who does not want to.

          1. Take this for example. People commonly refer to transgenderism as similar to the black civil rights movement. But it is not the same. Transgender people were not enslaved for hundreds of years, nor did they suffer under Jim Crow.

            If a black person walks into a Jewish bakery, he can buy any cake that he wants. But what if he wanted that baker to custom create a full sheet cake with the message about Black Lives Matter, Down with Israel? After all, the founders of BLM are infamously antisemitic, and have compared Israel with Nazi Germany.

            Should a Jewish baker be forced to bake a cake that calls for the destruction of Israel, just because the customer is black? After all, he is not declining the order because of the race of the customer, but rather the message demanded.

            I say, no, a Jewish baker should not be forced to make a custom cake celebrating something he doesn’t want to.

            Nor should an Arab baker be forced to create a sheet cake calling for the expulsion of Arabs from Israel.

            Nor should a Democrat baker be forced to create a cake celebrating Trump’s reelection.

            Who are we to judge whether we agree or disagree with either baker’s beliefs? It’s not our business. Find another baker. Personally, I would not eat food that was prepared for me by threatening the baker to do it against his will.

            Now, a good business person will keep his or her objections to a minimum in order to earn a living. On the other hand, there just might be a niche for some. For instance, there is certainly a niche for organic pastries who refuse GMO ingredients (and would certainly not want the government to force them to use them.)

        2. I might agree with you on that point if you could simply show me a Right we male AMERICANS have that is denied to females. They actually have More rights than us. Example:. She wants a baby, you don’t, She is pregnant. It is HER. Right to have or abort the baby and by default have you pay or not pay child support

        3. discrimination has aquired a negative connotation which is actually just “invidious discrimination”

          non-invidious discrimination means telling a difference between different things

          men and women have many differences and those may be very relevant for the workplace

          in a capitalist system, we let the market decide wages, not bureaucrats

          moreover, in countries with actual communist governments, “Feminism” is laughed at as impractical and a nuisance.
          A bourgeois affectation of Western powers, if they have anything more than a passing thought about it.

          Lenin’s words against feminists were pretty interesting. And not very kind.

          Today, mostly feminism is the province of whiny professors who are in weak university departments in the western world.

          Outside the West, it’s not taken seriously.

    2. Jim, there was never a reason for the ERA. Look at how the amendments ending slavery were misused permitting anyone born in this country to be an American citizen. The left wants to destroy our Constitutional Republic.. They want to dismantle it piece by piece in the same fashion they want to dismantle soon to be born babies.

  2. RBG needs to dare I say RETIRE. To old to long on the court. I SAY WE NEED AN AMENDMENT FOR SCJ TO RETIRE AT 80 BETTER YET 75 SOUNDS BETTER! Come on JT study the conservative party and put your great intelligentsia to work for us You don’t want to be a socialists do you!!!!!

  3. The incredible irony I am very much looking forward to is the day President Donald J. Trump gets to nominate his choice to replace RBG on the Supreme Court. Mmmm, mmmm good, right? The lady doth protest too much now, and so just imagine what will happen when she croaks during Trump’s second term as POTUS. It would seal RBGs legacy of not having the good judgment or grace to step down for the good of the country, not just her own ego. She should have resigned when President Obama encouraged her to do so. Ah, but RBG thought she had a better plan in mind; she would hang on to give President Hillary that honor of replacing her instead? Ooops. In all liklihood, RBG will now be replaced by none other than President Trump, a man she publicly despised. A most delicious irony to think about, isn’t it?

    1. My hope is that the president, in the words of Obama, “has more flexibility after the election”, and nominates a conservative, strict constructionist to the bench who is as young as possible to assure decades on the bench.

    2. I agree with Anon on this one, should have stepped down under Obama, for sure. I wouldn’t call it delicious, though…..

      When you come to my office to visit, I will offer you the choice of a Magic 8 Ball, a Slinky, or a Rubik’s Cube…..Your choice! 😉

    3. I almost forget, an Etch-a-Sketch, four items to pick from….

      Depending on which one you pick, will tell me some minutia about your personality….each one has a specific implication…hrmm, interesting….

            1. You can be an Idealistic thinker…i.e., public policy, or maybe think tank arena….or academia…

              Rubik’s cube is maybe more for someone who is a Gamer, highly competitive type, likes to win. So, litigator, perhaps.

  4. I would like to ask Ruth Bader Ginsburg what an Equal Rights Amendment would guarantee that is not already guaranteed by the 14th and 19th Amendment?

  5. 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.

    Again, the smarmy even-handedness. Scalia did no injury to the Republic. He was just an impediment to gliberals and leftoids who wanted to use the judicial ukase because they couldn’t get legislative bodies to implement their preferred policies.

      1. Scalia reportedly met with individual parties In private settings!

        Give me a break. He went vacationing with Cheney.

        So what? He and his wife went to the opera with the Ginsburgs. It may surprise you to discover that the efforts of people like you to present Richard Cheney as unfit for human company fall on deaf ears because people recognize malicious BS when they read it.

        He gave talks on many issues including issues in or on their way to the Supreme Court and excluded the press or worse. https://www.businessinsider.com/justice-scalia-and-freedom-of-the-press-2012-12. Oh yea, I forgot he was a Republican so that’s fine.

        It doesn’t matter how many poses you strike, you have no legitimate complaints.

  6. People derided Phyllis Schlafly and her organization for the chamber of horrors they predicted should that Amendment pass. Schlafly was a lawyer who had a satisfactory insight into the mentality of appellate judges and their collaborators in the disgusting public interest bar. Jean Bethke Eshtain pointed out about a dozen years later that appellate courts had repurposed the 14th Amendment to institute via judicial ukase a menu of policies that feminist agitators had sought the ERA to introduce, so there wasn’t much point in seeking the Amendment anymore. Then they repurposed the 14th Amendment to implement elements of the chamber of horrors that Schlafly was predicting back in 1977.

    What Robert Bork said 20 years ago remains true: ‘constitutional law’ has been destroyed as an authentic intellectual subdiscipline. It’s long been an exercise in reading tea leaves to discern what sort of whimsy the appellate judiciary and the law professoriate and the public interest bar will think up next. These characters have succeeded in undermining completely any justification for judicial review except in a framework of political theory which sees electoral institutions as student-council like entities which can only operate within limits set by a law mandarinate.

    As for Ginsburg and other feminist agitators, there’s hardly one thing they ever advocated that wasn’t either evil, or a meant to correct something that was not a problem, or meant to correct a problem which could not be addressed through any sort of political action. The polity and society would be better off if they’d never existed.

  7. ” Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement.”

    Ginsberg knows her time on the bench is limited so like a true leftist she has no objections to destroying the checks and balances our system is known for. She also has made a mockery of her own rule, the “Ginsberg Rule”. I give all the Supreme Court Justices more leeway in their comments than perhaps Turley does but at times Ginsberg goes too far in her absolute conclusions and suggestions about things before the bench.

  8. It’s a pity there’s nothing like the 25th Amendment for Supreme Court justices.

    Looking forward to November, let’s say the GOP wins majorities in both Houses of Congress. Would it be possible to impeach Justice Ginsburg on incapacity? It would have been a reach to impeach her for unethical conduct before this year, but the Democrats have hammered on the tool of impeachment until it has become a blunt instrument for would-be coup masters. They have only themselves to blame if their colleagues turn vindictive and use impeachment in the same way they tried to use it.

  9. “….a justice should not have a “base” or constituency.”
    ____________________________________________

    I’m afraid that ship sailed a long time ago.

  10. What an old partisan hag. Justices like her are why people don’t much trust the SCOTUS, and also why the court has to be packed by whichever side is in power. Because law has taken a backseat to partisanship. That is why Bork got Borked back in whenever. And why the Democrats made so much out of a lying POS named Anita Hill when Clarence Thomas was up for appointment.

    Squeeky Fromm
    Girl Reporter

    1. Couldn’t have said it better. So Squeaky, I certainly hope you are associating with a better bunch than in the sixties.

  11. The term “political” is somewhat subjective in this case. There are “Voter Political Issues” versus “Constitutional Legal Issues”. In other words if hypothetically 90% of voters wanted to repeal women’s voting rights (political voter issue), it’s nearly impossible to do since it’s primarily a constitutional right (generally a court legal issue, not subject to voters). The ERA could be considered primarily a “constitutional legal issue” – not primarily political – that defines what a 14th Amendment violation is and the associated penalties for violators.

    This works on the conservative side also. The recent U.S. Supreme Court ruling on “Heller” makes home possession of guns a “constitutional legal issue“, not a “voter political issue” decided by voters. While local government can follow the political will of the voters, on regulation, voters can’t fundamentally subvert that U.S. Supreme Court ruling. Ginsburg is primarily talking about the “constitutional legal issue” of 14th Amendment rights to equal treatment. Ginsburg is saying essentially “It’s the Law” and the current law and current enforcement is not protecting our 14th Amendment rights.

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  13. RBG also called for a repeal of prohibition; endorsed women voting and a ban on corsets. She’s a big fan of the new President, Herbert Hoover, though.

    When will this self-important fossil get to the tar pit?

    1. That’s cruel. It is true that from 1962 to the President, soi-disant feminists have a sterling record of never advocating anything that advanced the cause of justice. They cannot assemble a worthwhile social theory, because all of their utterances are manifestations of the sort of rhetorical gamesmanship you see in domestic arguments.

      1. TIA:

        “That’s cruel. It is true that from 1962 to the President, soi-disant feminists have a sterling record of never advocating anything that advanced the cause of justice. They cannot assemble a worthwhile social theory, because all of their utterances are manifestations of the sort of rhetorical gamesmanship you see in domestic arguments.”
        ********************************

        They never advocated anything for the public good either. Hence the pitiful state of working class men in this society. Cruel is only cruel if it’s done for the satisfaction of the inflictor. I like to think mine is for good of the order.

        1. Check it out. Mespo thinks fat white men with double chins like him are the fault of RBG because….reasons

          “I like to think mine is for good of the order.”

          With the growing largess of men in this country, who can’t even lift a hammer or carry a shovel for 100 meters, we won’t need fat ambulance chasers declaring the “good of the order” since they will all be extinct.

          1. Clowns make me laugh! You’re exactly the kinda guy who ought to be carrying shovels for 100 meters. Btw it’s yards in non-metric America europants. Lol

      2. Professional, “paid to comment on women’s issues” feminists weren’t heard about Bill Clinton’s sexual predation over the roar of crickets. They’re deathly silent now that highly-trained male athletes are taking testoerone antagonist medication for a year or two, then outperforming women athletes in women’s athletic contests. Where’s Titile IX when women in sports need it?

  14. Justice Ginsberg should have resigned from her post several years ago. One mistake that the founders made in the Constitution, was not to put an age or time limit to serving on SCOTUS. It seems the founders never dreamed that Justices would live as long as Ginsberg, and not want to retire out of respect for their position on the Court. The also never thought that Justices would ever be politically motivated or driven, thus they gave “lifetime” tenure.
    If Justice Ginsberg does not recuse herself on cases involving Donald Trump, or other cases she had publicly given her views on, she should be asked to resign, or be impeached. No one should be above the law, as she has often said.

  15. Yeah, RBG is certainly inappropriate for pre-judging here and elsewhere. But she’d better hang in there until President Bernie Sanders is in office to replace her.

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