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 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.