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In Which I Change My Mind About Justice Ruth Bader Ginsburg

I was going to write a post about U.S. Supreme Court Justice Ruth Bader Ginsburg giving an interview to Katie Couric recently. It is among the most candid insights I’ve yet seen into the mind of a sitting Supreme Court Justice. Here’s some highlights (I quote the most pertinent section below for those who have difficulty with video embeds):

Now, giving a media interview is not necessarily a bad or wrong thing for a judicial officer to do. But in the interview, she a) openly criticized her Brother Justices for their votes in a particular case, and b) dug into and explained her reasoning for her opinion in a particular case. Seems to me that whatever it was she had to say about the resolution of that case, she should have (and did) say in her remarkable dissenting opinion.

But as I wrote the first draft, and then edited the post, I realized that the thing that unsettled me most was not Justice Ginsburg articulating a different vision of the role of the Supreme Court in the Hobby Lobby case than mine, it was that she accused five of her colleagues of having a “blind spot” about the relationship between women having a place equivalent to men in the contemporary culture and their access to contraception:

Couric: All 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: I would have to say no, but Justices continue to think and can change. So I am hopeful that if the court has a blind spot today, its eyes will be opened tomorrow.

Couric: But you do, in fact, feel these five Justices had a bit of a blind spot?

Ginsburg: In Hobby Lobby, yes.

And then, I thought to compare this with criticism levied at two of those Brethren, Justices Antonin Scalia and Clarence Thomas. Within relatively recent memory, Justice Scalia was called to task for being both too friendly with Vice-President Cheney by going on multi-day hunting trips with him as well as being too open about that friendship while Mr. Cheney was discharging significant political duties which made him likely to be a litigant who would eventually appear as a part before the Supreme Court. Scalia responded to the suggestion that he recuse himself from cases involving Cheney with an extraordinary memorandum, the optimality of which remains ambiguous to me to this day. And Justice Clarence Thomas has been criticized for appearing at events more overtly partisan than some think appropriate and appearing with his very politically-active wife at partisan events.

And there is no procedure in place by which the Justices may formally hold one another to account nor may the executive branch impose discipline on them; Congress’ only check on their conduct is to impeach them for high crimes and misdemeanors, which is rather a big deal that in truth no one really wants to do or see happen. Given the Justices’ standing as role models for other judges in the country to pattern themselves, after, this could be taken as a bit, well, unprofessional.

And I tried to develop the idea that Justice Ginsburg had gone a step down that path too. After all, she’d gone further than the traditional sort of public statement judges make when asked about their rulings, which in this case would be something to the effect of, “I explained why I thought the majority were wrong in my dissent, and I hope in future similar cases, the reasoning in my dissent is used rather than the majority’s reasoning.” So my initial thinking was, yeah, she went about it in a polite-sounding and almost scholarly sort of way, where an elected official might have indulged in much more colorful rhetoric. So ultimately, I initially thought, it’s a calling-out of that particular shortcoming of other members of the Court, one which suggests that this decision has less legitimacy than other SCOTUS decisions. So I felt uncomfortable with it.

Now, if to you, the Court is nothing more than another overtly political actor within an overtly political system, then Justice Ginsburg indulging the opportunity to vent her (valid) frustrations in such a forum, a forum where it is plain that public opinion on an issue that sooner or later will come back before the Court in some iteration, is just another political act within that political system and you’ll be confused about why Justice Ginsburg’s remark might sit poorly with me. After all, I’m well on record as agreeing with the result that she would have reached. So maybe I’m the naïf here, but I still hang on to the idea that the Court is as much about law as it is about power. If you think that Justice Ginsburg ought to be upset were the government to act contrary to the holding in Hobby Lobby, notwithstanding her disagreement with that holding, then you share at least this morsel of naïveté with me.

If that point isn’t clear — why I think Justice Ginsburg should be displeased were the government to hypothetically act as though her opinion were the majority rather than the dissent — let me tell you a personal story. One of the judges before whom I’ve practiced, who has earned mountains of respect from me, was a trial court judge here in Los Angeles named Dzintra Janavs. Judge Janavs ruled against me on an attorney’s fee’s motion, finding that my client had no right to recover attorney’s fees based on a variety of reasons peculiar to that case. I appealed, and prevailed with an order that the exact amount of fees be fixed by the trial court. When the case came back down to her for disposition, she said in open court to me and opposing counsel, “I think this decision is wrong, but it’s the appellate court’s ruling and that makes it the law, so we’re going to follow it in letter and spirit.” And then she did exactly that, granting my client a meaningful and fair fees award.

Judge Janavs earned my respect from that exchange because she recognized the value in upholding the law, independent of her vision of what the law ought to be. She was professional about what she had to do. And I thought about that, compared with Justice Ginsburg offering sour grapes about not carrying the majority in Hobby Lobby, and saw some disharmony.  I thought, “This is kind of bordering on political advocacy, something that judges don’t get to engage with quite the full range of political options open to regular citizens.” And, damnit, it’s just plain unprofessional to criticize people within your own organization for a decision made by that organization as a whole, even if behind closed doors you disagreed with that decision.

But listening to the whole interview, I didn’t think that criticism really stuck. Of course Justice Ginsburg was disappointed in the outcome, and of course she was frustrated that she couldn’t convince her colleagues to see things her way. She’s spent her entire professional life working to advance the cause of women’s equality and this case was really super-important to her. She’d already taken the time to read tens of pages of her dissent out loud when the case was handed down, which is the convention on SCOTUS for a dissenting Justice to indicate the depth of her disagreement with the majority’s decision. If I recall correctly, she broke the record for the lengthiest oral dissent since records have been kept of these things.

Indeed, I’m not sure that I even felt particularly critical of Ginsburg’s Brother Justice Thomas for showing up to support his wife’s professional activities. Virginia Thomas is indeed a partisan operative of no small ability, and supporting one another’s professional work is what spouses do for each other. So if Justice Thomas goes to the occasional event where it’s transparent that the word “conservative” is a proxy for the word “Republican,” he’s doing so in his role as Virginia Thomas’ husband, a supporter of his wife. Nor is Justice Thomas required, by virtue of holding judicial office, to abandon his political opinions on things. While judicial ethics require that judges refrain from engaging in certain kinds of political advocacy, the robe doesn’t come with a muzzle. Furthermore, we probably don’t really want our Justices cloistered off from participating in regular society; it’s good that they get out and mingle like the rest of us.

And if I was going to give Justice Thomas an ethical pass for supporting his wife’s career in politics, then Justice Ginsburg expressing her frustration on an issue at the very core of her long, distinguished, and focused legal career seems very mild ketchup by comparison. If Justice Thomas gets a pass, then so does Justice Ginsburg. She need not wait until she steps off the bench and publishes her memoirs to indicate something that everyone who’s been paying the remotest bit of attention already knew — the majority’s decision in Hobby Lobby righteously pissed her off. And I needed to just get off my own high horse about my own ideas about professionalism on the bench and look again.

Look again I did, and with the perspective of consideration, I could find no fault whatsoever. Indeed, no criticism which held up, beyond my own prudish sense of what professional propriety requires in the face of an already-on-the-public-record disagreement, which of course is something that is my problem, not Justice Ginsburg’s.

So then I was going to scrap the post altogether, but the Notorious RBG did something today that put me back over the top to both salvage my thoughts about judicial statements to the press. There have been, after all, lots of calls for Justice Ginsburg to resign and thus allow President Obama to nominate her successor on the Court.* Calls which she appropriately resists. And in another interview, one given to Reuters, she responded directly to the concern:

Q: Do you worry about who will succeed you when you do retire?

A: No. I worry about what’s in front of me.

Q: Do you think you should be replaced by another woman?

A: No. There are some women I definitely would not want to succeed me … but a man like David Souter, that would be great.

And that’s why Justice Ginsburg is indispensable. So much packed in to that last sentence. Of course, of all the lawyers in the United States, David Souter is the least likely to actually want to serve on the Court as an indicator that she’s still ready, willing, and able to serve. And he’s also a reminder that no one can really be certain of how a Justice will behave once confirmed to the Court, as a reminder to those who seem genuinely concerned that she is not stepping down now. And there’s still more to unpack from it than that.

I don’t particularly agree with a good chunk of her reasoning, and in particular I think her Hobby Lobby dissent, for all its importance in highlighting the law as an agent for gender equality, sort of misses the point that the employees who would have had better access to contraceptives are third parties to the dispute and Constitutional (or in this case, quasi-Constitutional) cases are about the relationship of the government to the governed, not the relationship amongst individuals and their employers.

But as for her judicial propriety and her role on the bench and for taking to the press to talk about the law, how it’s made at the Supreme Court, and how it might be improved in the future, I’ve come full circle in my thinking, and now say, “You go, Your Honor.”

 

* I picked the example of this that I did because it comes from Erwin Chemerinsky, Dean of the law school at U.C. Irivine. Dean Chemerinsky may just perceive a wee bit of self-interest in a vacancy on the Court opening up, as he has been considered for high judicial office in the past.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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39 thoughts on “In Which I Change My Mind About Justice Ruth Bader Ginsburg

  1. If anything were to happen to Justice Ginsberg, or any of the other member’s of the Court’s liberal wind, is there any reason to believe that any nomination made by President Obama would get an up/down vote on the Senate floor? Unless the Republicans gain control of the Senate in November, and know that the result will be “no”?

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      • My perspective at the time was that the Dems suspected the Republicans would actually make the same rule change if they regained the Senate this year, so they decided not to continue hamstringing themselves with a rule they expected to be eliminated anyway. Whether the Republicans actually would have made that change (if they regain the Senate) we’ll probably never know. Given their complaints about obstruction of confirmation votes when they were in the majority (self-serving and hypocritical as they were) and the increasing use of filibusters in general by both parties, I think there was a significant chance they would have.

        Hoosegow,
        I think that was because there’s not such a tradition of filibustering SupCt nominees, as compared to lower court nominees, so the Dems didn’t expect they’d need the rule there. But given their prior use of the so-called “nuclear option”, I have little doubt they’d reach for it again if Senate Republicans made a serious effort to filibuster a nomination to the Supreme Court.

        Of course Harry Reid would have been much smarter just to return to the standing filibuster, but oh well.

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  2. Getting very meta here, but…

    “And, damnit, it’s just plain unprofessional to criticize people within your own organization for a decision made by that organization as a whole, even if behind closed doors you disagreed with that decision.”

    To what extent are our ideas of “professionalism” baked into preserving and reinforcing existing power structures? Justice Ginsburg was not criticizing her colleagues simply because she disagreed with them or found them to be bumbling fools; she was criticizing them because she perceived bias in their perspectives, specifically sex bias. Saying that she should sit on those criticisms, not air them publicly, because of an abstract notion of professionalism, is to say that professional harmony trumps justice, trumps sex equality. And it is the notion that professional harmony trumps justice, trumps sex equality that allows such perversions to persist.

    Notions of professionalism tend to be set top down. I have bumped up against this myself in my career, often being told not to voice certain facts or opinions in public. “Don’t air dirty laundry.” Sometimes this is aimed at fulfilling our mission as a school an I can respect that. But often times it is not. Often times it is aimed at protecting those in power. And the people in power are the ones who set the rules for professionalism, both formally and informally. How… convenient.

    Let me make clear that I am not in anyway accusing the honorable Mr. Likko of supporting, protecting, or otherwise engaging in sex bias or anything related to it. I think Mr. Likko’s appeals to professionalism are genuine and sincere. Rather, I’m wondering if the very idea of professionalism needs to be re-evaluated with regards to its use as a tool to protect and enforce existing and distorted power structures. Certainly not every notion of professionalism is such; but many — particularly those around voicing divisive opinions — often are.

    I don’t know exactly what oaths SCOTUS judges take. But I assume they are charged with defending and pursuing justice. If Justice Ginsburg sees factors present within the court that subvert this charge, it would seem the high mark of professionalism to give voice to them.

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    • I pretty much agree that most ideas of what professionalism is usually serve to encode and reinforce existing power structures. That function should be sometimes challenged.

      That said, I don’t think this is a situation where Ginsburg would have been wrong to state her disagreement publicly, but is right to do so now only because she’s calling out gender (or presumably other marginalizing criterion) bias. Is that the argument you’re making, or am I reading something different from what you intended? I think challenging one’s co-professionals publicly on other criteria too.

      I didn’t know the oath justice’s take, either. This site goes over the history of the oath, and I presume the site’s information is accurate, but I don’t really know. It says something about “justice” and the “Constitution.” Not all too surprising, I suppose, considering the job they’re taking the oath for.

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      • I think I got a little lost in your comment but as I understand it, here is how I would summarize my position:

        Sometimes the pursuit of one professional obligation (e.g., fighting injustice) requires disobeying another professional obligation (e.g., avoiding public criticism of a colleague). If there are no other means to achieve the former without violating the latter, than violate the latter one must.

        Gender (and racial and other forms of) discrimination are often so entrenched that the only means to at least begin the battle against them are through outside channels. It is unlikely that Ginsburg alone or even with her fellow dissenters* could have made evident to the five majority members their blind spots behind closed doors. But by starting a broader conversation, Ginsburg might shed light on those blind spots in others, perhaps future judges, and start to move the needle.

        * If I remember correctly, there were multiple dissents offered, so it is possible that Ginsburg does not even have allies amongst those who voted with her on this particular point.

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    • This is precisely the sort of comment I hoped for.

      My concern about professional behavior was not aimed at institutional harmony. It was about the legitimacy of the law. That’s why I included my own story about Judge Janavs. Courts, and especially SCOTUS, safeguard not only particular interpretations of the law, but also the integrity of the law and the respect the law commands. The respect the law must have if it is to govern and guide our society.

      With that said, is spot-on that courts, and especially SCOTUS, also have an obligation to both be unbiased and to appear unbiased, in part as a safeguard of the integrity and respect for the law that made me wonder about a Justice questioning her colleagues in the first place.

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      • Hope and ye shall receive, !

        I didn’t see the whole interview, but based on what you saw here, I didn’t see Justice Ginsburg questioning the integrity of the law so much as the integrity of the process. I understood her comment to be saying that there is something wrong with a system wherein five individuals with overlapping blind spots can codify those blind spots into law. I share that criticism with her (and, let’s be honest, just about everyone is willing to invoke a similar line of argumentation when the court rules against them; whether they do so legitimately is obviously another matter).

        If Ginsburg were to refuse to enforce the law or indulge in whatever would be the equivalent of non-enforcement for her position, I think we could look at whether she was meeting her professional obligations. But I don’t get the sense that is what she is advocating here. And, of course, what exactly her professional obligations — or, really, priorities — are when different ones come into conflict (e.g., defend the rule of law AND fight injustice) is above my pay grade.

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    • This particular notion of professionalism seems to be designed to establish a mythos of a court that is somehow above partisan ideology. This is silly, of course, and it’s not clear that many people actually buy into it anyway.

      Of course, Ginsburg, with her open contempt for the limits on federal regulatory and spending powers, is herself one of the worst offenders in this regard.

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      • Not sure it’s silly in the context of Scotus, but I’d agree that Burt didn’t make that qualification (though I’m assuming he meant it). I.e., presumably the quote about unprofessionalism in criticizing members of your organization for decisions doesn’t apply if the organization is Congress. So it comes down to the norms of the org., which at least in the case off public & government orgs, we can and should disagree about.

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  3. I applaud Ginsberg. She hold the same view I hold — HL should not be able to impose owner’s religious views on employees.

    Was Ginsberg’s criticism of the men serving on the court? Well, they stand in the privilege she’s speaking of; it’s not easy to get someone who has that privilege to sympathize with someone who doesn’t; and such lack of empathy should be criticized; particularly when it’s lack impacts a part of the population that’s bourn the brunt of these issues for all of history.

    If what Ginsberg said strikes you as ghastly inappropriate, perhaps it’s because she (and I, and so many millions of other women) believe that the HL decision was ghastly inappropriate; one that places someone’s religious beliefs above a woman’s own body; and this cannot abide.

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  4. Excellent post, Burt. I’d love to offer some intelligent pushback or critique, but I’m just too on-board with you here. On-board with your views on the judiciary being about law as well as power, about the importance of not crossing over into too-obvious partisanship, and on-board with your idea that Ginsburg–even though I don’t agree with her on this legal issue–did not go too far in her criticism of the Court’s majority. To some extent I think it’s even worthwhile to have this kind of thing out in the open. At it’s best, it reminds the public that justices are human, but that their disagreements are intellectual, not merely ideological.

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  5. Burt,

    How do you think the meat of Ginsburg’s criticism — namely that these five justices have a blind spot with regards to women’s issues (and which perhaps could be extrapolated to all male justices having an assured or very likely blind spot in this area) — interacts with Sotomayor’s prior comments about the unique perspective she brings as a Latina woman (“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”)?

    As notes above, acknowledging the humanity of the judges is probably a good thing. Going further, acknowledging the unique and individual humanity of each of those judges — including but not limited to how race, sex, gender, ethnicity, religion, age, sexual orientation, etc. contribute to that humanity — also seems like a good thing. Obviously, applied poorly that line of thinking can take us to some very different places. But as so often reminds us, this was not an issue of freedom vs tyranny; it was an issue of competing interests (in this particular case, the interests of religious groups and the interests of women and their health). It would seem logical then to pay special attention to those who can uniquely contribute on either of those issues. The idea that justices are objective arbiters free of bias is a flawed one. Ginsburg and Sotomayor seem willing to engage that conversation. Will their colleagues join them?

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    • But as@Tod Kelly so often reminds us, this was not an issue of freedom vs tyranny; it was an issue of competing interests (in this particular case, the interests of religious groups and the interests of women and their health).

      I rather disagree with this; my right to my body is not a competing interest with someone else’s right to religion. For women, separating this out is critical, since so much of religion seems to bother itself about women’s sexuality. There is a point where it’s important to recognize religious beliefs impinge women’s right to self determination; and this is a very basic right of freedom, the impinging a form of tyranny. It’s just been that way for so long, the change from life being that way so new, that it’s difficult to see it as the infringement on freedom that it actually is.

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      • If I may clarify, I believe that there is a hierarchy of rights and would place women’s rights to self-autonomy, agency, health, etc. over a religious rights. HOWEVER, I do agree with Tod that framing it as tyranny-vs-freedom is a failing approach. People do have a right to their religion. Does this trump women’s rights? I say hell no. You say hell no. But it is important to acknowledge that it IS a rights conflict.

        You and I would also probably agree that were there a way to ensure women full realization of their rights without even interacting with other people’s religious rights, that would be preferable to engaging in a rights conflict. Because we do hold some respect for religious rights. Unfortunately, those same people claiming religious rights also undermined any such option.

        TL;DR: It remains a right conflicts, but some rights trump others and should every time out when such conflicts arise. But ideally we would have avenues through which we could avoid rights conflicts.

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      • People do have a right to their religion. Does this trump women’s rights? I say hell no.

        Again, this question was not at issue in the Hobby Lobby case. Whether or not you think employers should be compelled to provide free contraceptives for their employees, no one one either side of this case was suggesting that Hobby Lobby, or anyone else, should be allowed to interfere with women’s ability to purchase contraceptives.

        The funny thing is that Hobby Lobby pays well above the national average for retail employers, with a minimum of $14/hour. Even women using relatively expensive contraceptives are unambiguously better off working at Hobby Lobby with no contraceptive coverage than they would be working off at most other stores with contraceptive coverage.

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      • Again, this question was not at issue in the Hobby Lobby case. Whether or not you think employers should be compelled to provide free contraceptives for their employees, no one one either side of this case was suggesting that Hobby Lobby, or anyone else, should be allowed to interfere with women’s ability to purchase contraceptives.

        They are not free. They are paid for via health insurance premiums; just like your annual prostate exam is paid for via your health-insurance premiums.

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      • Can a closely-held business owned by Christian Scientists be required by law to include prostrate exams in my health insurance?

        Can a Jehovah’s Witnesses owned business be required to cover blood transfusions?

        Can a Catholic owned business be required to cover first trimester abortions?

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      • They are not free. They are paid for via health insurance premiums; just like your annual prostate exam is paid for via your health-insurance premiums.

        Not if they’re not included in the plan.

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      • Not if they’re not included in the plan.

        Previously, any mandated coverage was determined at the state level. Some states mandated some things, some others, some mandated nothing.

        Under ACA, all plans, everywhere in the land, have to cover basic preventive care with no co-pay to the citizen; and it doesn’t really matter what was ‘in the plan’ before ACA; that’s an apples-and-oranges comparison. My state required some basic level of mental-health care, many didn’t. Under ACA, basic mental health is required — mandated — in all plans, there are new rules about what they must include.

        Basic, preventive health care includes prostate exams for men, contraception and maternal care for women. So, in fact, in any plan you purchase today, in any state in the union, contraception coverage is included. The question is who/how it will be reimbursed, not if it will be reimbursed. And IMO, this constitutes a giant rent-seeking on behalf of religious closely-held corporations.

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  6. What Ginsburg said isn’t that different from Thomas’s dissent in Virginia v. Black, which amounts to “White people have a blind spot about cross-burning.”

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  7. RBG: but a man like David Souter, that would be great.

    Are you sure you aren’t reading more into this quote than what she meant?

    Anyway, here in New Jersey, we don’t even have the pretense of our Supreme Court being non-partisan.

    Some background: Our governor, Chris Christie (R), has long felt that our Supreme Court was too activist. Therefore he promised to nominate judges wouldn’t be. Our Supreme Court justices also do not have lifetime tenure; they are appointed to a seven-year term and then are eligible to be reappointed for a second term, which they hold until they reach 70 years of age.

    John Wallace, who is black, was originally appointed in 2003. In 2010, Christie refused to reappoint him. In retaliation, Senate President Steve Sweeney (D) refused to hold a hearing on Wallace’s replacement until Wallace turned 70, which is when he would have hit mandatory retirement.

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