Injudicious Ginsburg

Published February 19, 2015

National Review Online

At her Supreme Court confirmation hearing in 1993, Ruth Bader Ginsburg repeatedly explained that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” As she declared in her opening statement:

A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Alas, Justice Ginsburg is no longer following the ethical line recognized by nominee Ginsburg. In recent months, an “increasingly chatty” Ginsburg — that’s Linda Greenhouse’s characterization — has given very clear hints about how she will vote on the hot-button question of whether the Constitution somehow forbids states from retaining the perennial definition of marriage as the union of a man and a woman.

Last August, a National Law Journal reporter asked Ginsburg what the Court’s 2013 decision in Windsor v. United States portends for the battle against state marriage laws:

NLJ: When the 5–4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision? [Brackets in original.]

Instead of declining to answer — at a time when certiorari petitions on decisions striking down state marriage laws were pending before the Court — Ginsburg volunteered her views on this central question about the meaning of Windsor:

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together, you say the main theme is the right to be treated with equal dignity. [Emphasis added.]

I certainly believe that, on a proper understanding of what marriage is, state laws that define marriage as a male-female union treat all individuals “with equal dignity.” But it is quite clear that Ginsburg was broadcasting a very different message.

Then, just last week, a Bloomberg interviewer posed this question to Ginsburg:

Are you concerned that if this court this year were to say that there is a constitutional right for same-sex couples to marry that there are parts of the company — country that would not be able to accept or would not accept that decision?

Again declining to fend off the question, Ginsburg responded:

I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous. In recent years, people have — have said this is the way I am. And others looked around, and we discovered it’s our next door neighbor, we’re very fond of them. Or it’s our child’s best friend. Or even our child. I think that as more and more people came out and said, ‘This who I am,’ and the rest of us recognized that they are one of us, that there — there was a familiarity with people that didn’t exist in the beginning when the race problem was on the front burner, because we lived in segregated communities and it was truly a we/they kind of thing. But not so, I think, of the gay-rights movement. So I think it would not take — it would not take a large adjustment. And, of course, we shouldn’t speak much more about this subject, because one way or another, it will be decided before we leave town in June. [Emphasis added.]

To those familiar with Ginsburg’s view of the role of the Court, her thoughts about what the American public will accept are closely linked to how she will rule on this matter. A fervent believer in a supposed constitutional right to abortion, Ginsburg has nonetheless been famously critical of Roe v. Wade for moving “too far, too fast” and thus triggering a pro-life backlash. Devoid of any firm anchor in the Constitution’s text and original meaning, her “living Constitution” approach takes its cues from how she reads “the climate of the age” (as she put it in her confirmation testimony). So when Ginsburg states that a Supreme Court ruling in favor of a constitutional right for same-sex couples would be accepted and would not trigger a backlash, she is very clearly signaling that she will vote in favor of such a right. (Ginsburg’s belated recognition that “we shouldn’t speak much more about this subject” can’t undo the damage.)

Under federal law, a justice or judge is obligated to “disqualify h[er]self in any proceeding in which [her] impartiality might reasonably be questioned.” It’s widely accepted, it’s worth emphasizing, that such disqualification can’t be rooted in views that a justice expressed in previous judicial opinions or in the justice’s explanation of those views. That explains why Ginsburg, at her confirmation hearing, was willing to provide “helpful clarifications” about her “13 years of opinions” as a D.C. Circuit judge. That also explains why the claims two years ago for Justice Scalia’s recusal from the marriage cases then pending were baseless.

Ginsburg’s public comments provide ample reason to question her impartiality. Indeed, it’s no surprise (but still appalling) that the Human Rights Campaign is using Ginsburg’s comments to solicit signatures for the amicus brief that it will be submitting to the Court in the pending marriage cases:

For the very reasons that nominee Ginsburg recognized in her confirmation-hearing testimony, Justice Ginsburg’s gratuitous volunteering of very clear hints about how she will vote on an issue that she has never before addressed in a judicial opinion violates the judicial ethic of impartiality and requires her recusal from the pending marriage cases. Anything less would, in her words, “display disdain for the entire judicial process.”

Human nature being what it is, it’s not easy for a justice to recuse in a closely divided case that she obviously cares passionately about. This is exactly the situation Justice Scalia faced a dozen years ago in the wake of his public comments criticizing a Ninth Circuit ruling against the Pledge of Allegiance. As Slate’s Dahlia Lithwick wrote at the time, Scalia was “intellectually honest enough to know that he slipped,” and he thus “recused himself from what would have been one of the most important church–state cases of his career.” His recusal meant that “the court may well split 4–4 on the case, in which case the 9th Circuit’s decision will stand, for all the states in its jurisdiction.” (In the end, the remaining eight justices all voted to reverse the Ninth Circuit, five on grounds of lack of standing and three on the merits.)

We will soon see whether Justice Ginsburg is “intellectually honest enough to know that [she] slipped” and to recuse herself from the pending marriage cases.

— Edward Whelan is president of the Ethics and Public Policy Center and a leading contributor to National Review Online’s Bench Memos blog.

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