Ruther Bader Hubris

August 3rd, 2014

While I am a fan of Justice Ginsburg (in particular her neck doilies), I am getting somewhat tired of the unflagging adulation of her. Her interview with Katie Couric had enough softballs to field an entire little league team. For example, RBG said that Hobby Lobby “have no constitutional right to foist that belief on the hundreds and hundreds of women.” She later discussed the Free Exercise Clause. She knows that Hobby Lobby was about RFRA, and not the First Amendment. Any competent interviewer would have pushed back. But Katie Couric was too busy gazing into RBG’s closet. I can’t imagine a similar interview with Justice Scalia going the same way–think of her grilling of Sarah Palin back in 2008.

But all of this hero worship may be having a deleterious impact on Notorious RBG herself. This stuff goes to your head, or jabot. I was stunned that she  took Couric’s bait, and said that her five male colleagues have a “blind spot” when it comes to woman.

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 I am ever hopeful that if the Court has a blind spot today, its eyes will be open tomorrow.”

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

Ginsburg: “In Hobby Lobby? Yes. Yes, I did.”

Couric: “And why was that?”

Ginsburg: “The same kind of blind spot the majority had in the Ledbetter case”

That is a stunning rebuke to her colleagues. Not only does she refuse agree to disagree about the interpretation of RFRA, but she said that they are *blind* to the plight of the woman–putting aside the law, because whatever. This is akin to Justice Sotomayor’s dissent in Schuette, who explained that Chief Justice Roberts can’t understand how racial minorities feel, and that he is “out of touch.” That is a blind spot. Such rhetoric is par for the course for the chattering class, but it is unseemly from the Justices themselves. RBG joined Sotomayor’s opinion, but I thought she was better than that. I guess not.

For further evidence of her own visions of grandeur, Consider Justice Ginsburg’s interview with Joan Biskupic on Thursday. She literally thinks she is the best, and no one can replace her:

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

That is some hubris. Oh I’m sure I could find hundreds of law professors who would rather see someone half her age on the Court, even someone more moderate. What RBG maybe doesn’t realize is the non-starstruck lawyers care less about who sits on the Court than who is casting votes for years to come. I wonder if she would have deigned to say that in 2009 when Judge Sotomayor and Solicitor General Elena Kagan were cozying up the short list.

In the past she explained that she wants to stick around until she can no longer do the job. But now, we see the ulterior motive–she doesn’t think anyone else can do the job better than her. And all of the praise of her no doubt heightens this. I still think she should decide when she retires, but now we know why she’s sticking around.

After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court. Criticizing her opinions amounts to criticizing women’s rights more broadly. For example, when Justice Alito responded to charges (many extremely exaggerated) in RBG’s Hobby Lobby dissent, the sense on the left was that he was attacking women, and RBG in particular. When I write a post about her decisions, I find myself double-checking adjectives for sensitivity, which is something I would not think twice about if I was writing about a Breyer or Stevens opinion. It becomes very dangerous when the law transcends the judicial opinions, and the Justices themselves become the locus of the constitutional discourse. For all the talk about polarization on the Court by the conservatives, it is the Court’s liberal wing–RBG and Sotomayor in particular–who are fragmenting the unity, both in their opinions and in public.