WASHINGTON, D.C. - You might think that the Supreme Court was a big enough megaphone for a justice - but over the past week, one member of the high court has been taking her opinions from that bench into the court of public opinion.
In several recent wide-ranging interviews and appearances, Ruth Bader Ginsburg has criticized her male justices for their decision in Burwell v. Hobby Lobby Stores. In that case, the court ruled 5-4 that the government cannot force certain employers to provide coverage for abortions and some methods of birth control if it violates their religious beliefs. Joining Ginsburg in dissent were the other two women on the court, Justices Sonia Sotomayor and Elena Kagan, and Justice Stephen Breyer.
Ginsburg read her blistering dissent from the bench, calling the ruling "a decision of startling breadth." She viewed the ruling as one that failed to recognize the needs of women and limits a woman’s ability to make her own choice.
“The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage,” wrote Ginsburg.
Turns out that dissent was not going to be Justice Ginsburg’s last word on the issue. Speaking recently with Katie Couric on Yahoo Global News, Ginsburg said that five of her male counterparts on the court have “a blind spot” when it comes to women’s issues.
Couric asked Ginsburg whether she “believed the five male justices truly understood the ramifications of their decision” in the Hobby Lobby case.
Following a long pause, Ginsburg said, “I would have to say, ‘No.’”
“But,” she added, “justices continue to think, and can change. So I’m ever hopeful that if the Court has a blind spot today, its eyes can be opened tomorrow.”
“But you do, in fact, feel that these five justices had a bit of a ‘blind spot’?” Couric asked.
“In Hobby Lobby?” Ginsburg replied. “Yes.”
“Because they couldn’t understand what it is like to be a woman?” Couric asked.
“They all have wives. They have daughters. By the way, I think daughters can change the perception of their fathers.”
A few days later, in an interview with the Associated Press, Justice Ginsburg reiterated her criticism of the Court’s Hobby Lobby decision and her belief that gender on the court mattered. “I have no doubt that if the Court had been composed of nine women the result would have been different in Hobby Lobby,” Ginsburg told reporter Mark Sherman.
Soon after that, as reported by the The New York Times, Ginsburg, while attending an event at Duke University School of Law, told students and alumni the Supreme Court had made a grave error in its Hobby Lobby decision. From the Times' report:
"There was no way to read that decision narrowly," she said, adding that it opened the door to job discrimination against women. ‘What of the employer whose religious faith teaches that it’s sinful to employ a single woman without her father’s consent or a married woman without her husband’s consent?’ she asked. The court, she said, "had ventured into a minefield."
Why is this woman so chatty? And how unusual is this kind of commenting?
Well, Ruth Bader Ginsburg is hardly the first Supreme Court justice to speak her mind off the bench. Politico has written about the “not so reclusive justices” – noting that Antonin Scalia’s airtime has included Piers Morgan, C-SPAN and “Fox News Sunday,” where he talked about the court’s decision on the health care law.
Sonia Sotomayor, on book tour, has appeared on “60 Minutes,” “The View,” “Today,” “The Daily Show” and “Colbert Report.”
Some justices, like David Souter, disappear into the woods after leaving the bench. Others, like Sandra Day O’Connor and Justice John Paul Stevens take to the “The Daily Show" and "Colbert Report".
And it certainly isn’t the first time justices have noted a “blind spot” in one another. Dhalia Lithwik of Slate observes that increasingly, “what the dissenters are implying (or straight out saying) is that the majority is simply “blind” to reality, to how things work, to the world as the rest of us experience it. It’s not legal blindness. It’s more like life-blindness, and it signals a growing sense that the increasing isolation of the two wings of the court is beginning to show in the doctrine.“
For example, in her dissent in the recent case upholding Michigan’s ban on the use of affirmative action in higher education, Justice Sonia Sotomayor took her colleagues to task for a blind spot on the realities of being a racial minority.
"In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination...This refusal to accept the stark reality that race matters is regrettable. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society."
Ruth Bader Ginsburg has devoted her career to women’s rights and equal representation, so it isn’t all that surprising that she would raise her voice loudly and publicly in opposition to conservative justices she sees threatening those causes. But, her recent rash of public commenting may very well be aimed at a different audience – the numerous liberals who have been calling for the 81 year old justice to step down. They argue that she should get out while Obama is still in office and can replace her with another, younger liberal justice.
So while Ginsburg’s comments about her colleagues have been interesting and even provocative, the real message from Ruth Bader Ginsberg’s summer media tour :
“I’m here to stay and not planning on going anywhere for awhile.” She really is the Notorious R.B.G.