In Which I Change My Mind About Justice Ruth Bader Ginsburg

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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39 Responses

  1. Avatar Gabriel Conroy
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    says:

    I’m still absorbing this OP, but in the meantime, the link to Scalia’s memorandum (re: recusal and his friend Mr. Cheney) doesn’t seem to work.Report

  2. Avatar Tod Kelly
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    Ooo, bumping this. Nice job, BL.Report

  3. Avatar Michael Cain
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    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”?Report

    • Avatar James Hanley in reply to Michael Cain
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      Yes, because the Democrats changed the filibuster rules last year to eliminate filibusters on judicial appointments.Report

      • Avatar Gabriel Conroy in reply to James Hanley
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        That might turn out ironically if the GOP wins the Senate.Report

      • Avatar Hoosegow Flask in reply to James Hanley
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        I thought they specifically exempted Supreme Court nominees from the change.Report

      • Avatar James Hanley in reply to James Hanley
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        @gabriel-conroy

        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.Report

  4. Avatar Kazzy
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    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.Report

    • Avatar Kazzy in reply to Kazzy
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      says:

      Of course, my pushback here comes while in awe of a typically fantastic piece.Report

    • Avatar Gabriel Conroy in reply to Kazzy
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      @kazzy

      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.Report

      • Avatar Kazzy in reply to Gabriel Conroy
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        @gabriel-conroy

        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.Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        Thanks, Kazzy. (I admit my comment strayed when I started talking about the oath.)

        I think I mostly agree.Report

    • Avatar Burt Likko in reply to Kazzy
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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, @kazzy 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.Report

      • Avatar Kazzy in reply to Burt Likko
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        Hope and ye shall receive, @burt-likko !

        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.Report

    • Avatar Brandon Berg in reply to Kazzy
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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.Report

      • Avatar Michael Drew in reply to Brandon Berg
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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.Report

  5. Avatar zic
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    says:

    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.Report

  6. Avatar James Hanley
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    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.Report

  7. Avatar Kazzy
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    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 @james-hanley 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 @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). 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?Report

    • Avatar zic in reply to Kazzy
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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.Report

      • Avatar Kazzy in reply to zic
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        says:

        @zic

        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.Report

      • Avatar Brandon Berg in reply to zic
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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.Report

      • Avatar zic in reply to zic
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        says:

        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.Report

      • Avatar James Hanley in reply to zic
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        says:

        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?Report

      • Avatar Mike Schilling in reply to zic
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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?

        What position would they prefer?Report

      • Avatar Brandon Berg in reply to zic
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        says:

        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.Report

      • Avatar zic in reply to zic
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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.Report

  8. Avatar Mike Schilling
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    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.”Report

  9. Avatar ScarletNumbers
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    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.Report

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