This week I criticized Supreme Court Justice Samuel A. Alito for a speech that he gave to the Federalist Society. That should come as no surprise since I have spent two decades criticizing justices for such controversial public addresses. However, I was struck in the last couple days by the politicians like Sen. Elizabeth Warren and liberal faculty members who are falling over themselves in utter disgust with such public commentary from a sitting justice. For years, I criticized the far more egregious comments from Justice Ruth Bader Ginsburg without a peep of protest from people like Warren. Instead, Ginsburg became the “Notorious RBG.” There is, however, no place for a Notorious SAA in the media or academia.
I admittedly hold a more traditional and cloistered view of public role of justices. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. We have seen in the last couple decades more and more public speaking by justices in both books and speeches on contemporary issues. I have called this trend the “rise of the celebrity justice.”
As I previously noted, Justice Alito addressed attacks on religious liberty and free speech, including citing past cases and disputes before the Court. He also declared “The Covid crisis has highlighted constitutional fault lines” in attacking such rights. Alito also launched into liberals who he views as threatening religious rights, noting that “[i]n certain corners, religious liberty is fast becoming a disfavored right.” Alito attacked the Obama administration’s “ protracted campaign” and “unrelenting attack” against the Little Sisters of the Poor.” He also criticized a Washington State for requiring pharmacies to provide emergency contraception. He maintained that such emergency contraception “destroys an embryo after fertilization.” All of those issues have been and will again be before the Court. Indeed, as Alito was making these ill-considered comments, the Catholic Church was coming before his Court in these very issues.
So there is reason to be critical of Alito. However, the voices are coming from people who once cheered on such comments from Ginsburg. Now however there was nothing but utter disgust. This was not “Notorious” but nauseating.
Rep. Jimmy Gomez, D-Calif., declared “These are stunning, harmful words from Justice Alito.”
Sen. Elizabeth Warren was beside herself in shock and disgust: “Supreme Court Justices aren’t supposed to be political hacks. his right-wing speech is nakedly partisan.”
Others repeated calls for packing the Court or taking other partisan moves in light of Alito’s remarks. Aaron Belkin, director of Take Back the Court declared “Justice Alito’s wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes — and they’re planning a partisan revenge tour.”
Yet, Alito’s comments look positively tame in comparison to what Ginsburg regularly declared in speeches, which thrilled the media, members of Congress, and academia. While I praised Ginsburg as a jurist, she undermined the Court in these public speeches. Ginsburg had a base of supporters and she maintained that base with speeches that were openly partisan and she often discussed issues before or likely to come before the Court. It was always a glaring conflict for the jurist who is referenced in the “Ginsburg Rule.” The rule is often cited by nominees in refusing to discuss issues or cases in confirmation hearings that might come before the Court. It is a rule that is based on principles of judicial ethics for all jurists. It is not just confined to confirmations. It applies to any justices and judges in discussing such issues at any time outside of courts. Yet, after refusing to answer even generalized questions in these hearings, justices proceed to speak publicly on the very same questions once they are confirmed. Indeed, some justices seem to maintain a fan base or constituency on the right or the left in these speeches — a serious challenge to tradition of neutrality expected of our justices.
Despite repeated controversies in speaking publicly on political issues, Ginsburg is undeterred. The same year that she passed, Ginsburg continued such speeches in discussing issues like the ERA to the joy of liberals. Shortly before that, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. Again, the comments thrilled liberals.
As in her 2017 speech, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president. Speaking at a Columbia University Women’s Conference event, Ginsburg said
“I think it was difficult for Hillary Clinton to get by even the macho atmosphere prevailing during that campaign, and she was criticized in a way I think no man would have been criticized. I think anyone who watched that campaign unfold would answer it the same way I did: Yes, sexism played a prominent part.”
Ginsburg even attacked members of Congress for speaking inappropriately publicly. In one interview, Ginsburg blasted senators for discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” In discussing these issues with the BBC’s Razia Iqbal, Ginsburg commented on Trump’s desire for a review of the basis for impeachment. She dismissed the idea and noted “The president is not a lawyer, he’s not law trained.” The Court just took a case with potential bearing on the impeachment and particularly the article of obstruction of Congress. For Ginsburg to make any comments on the issue is wildly inappropriate. She then added criticism of Senate Majority Leader Mitch McConnell and other senators who have discussed their views of the merits: “Well if a judge said that, a judge would be disqualified from sitting on the case.”
Justice Ginsburg started another firestorm over public comments on how she would move to New Zealand if Donald Trump is elected. Ginsburg apologized for that 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.