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Sunday, August 25, 2013

Unnecessary and Inappropriate

That, in brief, is my take on this interview Justice Ruth Bader Ginsburg gave to the New York Times for today's paper. In it, she made clear that she was unmoved by pressure from some liberals for her to step down while a Democratic president can appoint her successor; said, according to the Times's paraphrase, that "her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy," although she suggested that she did not think this was likely to happen; and criticized the activism of the current majority and several specific decisions.

The interview was unnecessary. To whom was she speaking? Her colleagues on the Court already know what she thinks, and she has ample alternative means of sharing her views with them. I doubt that conservatives off the Court will be moved much by her interview one way or the other. That leaves two liberal constituencies aside from the general public: the administration, which already knows she won't shove off; and establishment legal liberals of the ACS type, whom she can easily address more directly in person. That leaves, in my view, little serious point to this interview. If she had had something novel to say, I would be more charitable about her doing the interview, but she doesn't. Given my view that the interview was unnecessary, given the obviously political overtones of her charges, and given my general view that judges should not absent extraordinary circumstances or special needs make public political statements, I conclude that the interview was inappropriate.

One friend whose views I respect praised the speech as an instance of "speaking truth to power." I confess I almost always resist the use of this phrase, which I think is mostly both overused and misused. Much of the time, what people hold out as examples of "speaking truth to power" involve people who are themselves powerful; don't involve instances of the speaker actually directly addressing a powerful person with whom they disagree, but rather involve addressing an audience (often a powerful one) that already agrees with them, and to whom they are careful to say nothing disagreeable; and in any event don't involve speaking novel and disturbing truths, but well-worn and banal statements. All those things are true here. Whatever else one could call the interview, I don't think "speaking truth to power," especially with its (unduly, mostly false) romantic overtones, captures it.

For the most part I leave aside the question whether she should retire, and why she rather than someone else should be the target of efforts to get her to retire. I tend to think justices shouldn't serve forever but are free as a matter of present fact to serve as long as they wish, regardless of what it does to the long-term health of their jurisprudence. At the same time, however, I don't think "I really admire X" or "X has done so much for us" is a sufficient basis for the conclusion that "as far as I'm concerned, X can serve as long as he or she wants." If you think law and the Supreme Court matter, and you share Ginsburg's political views concerning the Court, you should probably conclude that the cause of justice would be best served by her retiring soon. On this view, Ginsburg's adamance is more selfish than justice-seeking. And, indeed, there is no doubt that a certain (no doubt well-earned) sense of high self-regard infuses the interview. But one needn't take this view of the Court or its importance, or the importance of a liberal version of politics or justice.

The bottom line, for me, is that the interview was unnecessary, and when you combine the fact that it was unnecessary with the political nature of her advocacy in the interview, it was perforce inappropriate. I don't doubt that some will applaud the interview because they like her, or like what she said, or both. Neither those reasons, nor the general goal of pleasing or rallying the base, are sufficient reasons to justify it. Justice Ginsburg insists in the interview that she is still fully capable of making decisions. I have no reason to doubt it. But her decision to do this interview was itself unwise and more than a little self-indulgent.     

 

Posted by Paul Horwitz on August 25, 2013 at 10:29 AM in Paul Horwitz | Permalink

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You accuse RBJ four times of having given a "political" interview. How so? I don't see anything political about it at all.

Posted by: Marty Lederman | Aug 25, 2013 10:44:37 AM

Really? Nothing? At all? You are more charitable in this instance than I am--assuming it is uncharitable to call the interview political, which depends on one's point of view, and assuming also that it is charitable to describe me as "accusing" Ginsburg of something.

What I said first and foremost was that the interview had "obviously political overtones," and I stand by that. Critiquing the Court in an extrajudicial writing, one that is not in the least academic, one that uses the New York Times as a pipeline to an anticipated audience, one that makes points that are more or less constantly the subject of public political disagreement among those who care about this sort of thing, one that addresses an appointment process that is itself wrapped up in politics, one whose arguments are neither new nor intellectually interesting, and therefore serve more to emphasize than to describe or educate, one that makes some efforts (albeit in her understated fashion) to use passionate persuasive language; yes, I would say this has obvious political overtones. Not partisan overtones, but political overtones. *Is* political, I would say. But if you find anything useful in the distinction between making a political statement and deliberately making a statement in a political forum that one knows will have political overtones, then I'm happy to accept that distinction.

Posted by: Paul Horwitz | Aug 25, 2013 10:57:35 AM

I would add, incidentally, that if I am mistaken in thinking the interview has strong political overtones, apparently I'm not alone. Many of my Facebook friends who are big fans of Justice Ginsburg, or more accurately in some cases are inclined to reflexively admire any liberal Justice. seem to have received--and praised--the interview in precisely that manner. I do not take that as evidence that they are right; political types tend to get a little overexcited on Facebook. But it is evidence that I'm not simply crazy, which on most days I welcome.

Posted by: Paul Horwitz | Aug 25, 2013 11:05:37 AM

Perhaps we simply have different ideas about what "political" means. I had assumed you meant that RBJ was attempting to influence, well, "politics" -- if not elections, then at least the process of lawmaking. (Not that there'd necessarily be anything wrong with that -- certainly she and other Justices (e.g., her Ledbetter dissent) from time to time have properly urged Congress to act in particular ways.)

But now you appear to be suggesting that "political" means "nonacademic," and/or "extrajudicial," and/or "addressing the appointment process" (even if not trying to influence that process -- to the contrary, she merely explains that she's not retiring soon), and/or "using passionate persuasive language" in describing what the Court itself has been doing, and/or being unnovel or "not intellectually interesting." In which case 99% of what I, and you, and most everyone we know, say, is "political."

I had thought you had meant "political" as a perjorative -- standing in, roughly speaking, for attempts by members of the judiciary to influence elections. (Of course, that's not unusual, either. I'd hazard to say that the Court's decisions in Bush v. Gore, Crawford, WRtL and Citizens United, and Shelby County have had and will have a much more profound and foreseeable impact on elections than 1000 RBG interviews.)

But if, instead, you simply mean to suggest that she has spoken in ways that are "nonacademic," "extrajudicial," and "persuasive" but "not intellectually interesting," you probably should explain why *those* things -- which describe countless historical examples of Justices' public interviews, speeches and statements -- are, in your view, inappropriate.

Posted by: Marty Lederman | Aug 25, 2013 11:20:25 AM

Please excuse my inexplicable J/G slips -- shows what can happen when one blog-comments before a.m. coffee!

Posted by: Marty Lederman | Aug 25, 2013 11:22:55 AM

I agree on the jurisprudence discussion, but not on hitting back against the extremely tacky "you're too old, go away" crowd. If the former was the price for getting the latter into high profile media outlets, then it was a reasonable trade.

Some societies respect the wisdom that the elderly can bring to bear.

Posted by: Brad | Aug 25, 2013 11:24:46 AM

Paul, can't the same be said of Scalia's comments that the court was "inventing new minorities?" His colleagues on the court are fully aware of what he thinks and are unlikely to be moved by his comments. Therefore, wasn't he simply speaking to his base, ie, the federalist society? (There's something unseemly about supreme court justices having a base but that is the world in which we now live.). I think Ginsburg's comments were actually aimed at the general public. Remember, it was John Roberts who proclaimed the he would be nothing more than an umpire on the Court with no political agenda. His actions on the Court have instead been nakedly political. He has done everything he possibly can to advance the interests of the GOP: overturning an important section of the voting rights act, making it harder to challenge political gerrymandering, the Citizens United decision, etc.

Posted by: Ken | Aug 25, 2013 12:01:54 PM

I thought the interview came across somewhat poorly, probably in large part because I disagree with her. But I also think the writer's presentation of the interview played a role. I bet if we were just given a transcript of the interview, rather than this article, we wouldn't see the undertones of politics and bitterness that are present in this piece.

Posted by: andy | Aug 25, 2013 2:19:51 PM

It's also somewhat humorous that her apparently proudest achievement is the Ledbetter pay act. Odd to call your colleagues "activist" when you literally and proudly are trying to legislate from the bench.

Posted by: andy | Aug 25, 2013 2:21:09 PM

andy: A dissenter calling for the legislature to overturn a statutory interpretation decision she believes to be wrongly decided is not "activist" in any sense of the word.

Posted by: AF | Aug 25, 2013 6:13:36 PM

The tenor of the OP suggests that the whole point of the article concerns her retirement plans or something. The article says the interview involved "wide-ranging remarks."

And, the audience seems to be the general public. The NYT is not only read by legal insiders who would read or contribute to this blog. She's 80. It is not surprising if she wants to express her general views to society at large. Breyer wrote books doing that and other justices like Scalia do it too. I agree with Prof. Lederman's remarks.

Also, the article notes "Justice Ginsburg counts [the Ledbetter Pay Act] as one of her proudest achievements." So, 'apparently' it is not her 'proudest,' since it says right there that it is "one of" them. Also, this underlines why "activist" has little meaning w/o context. She says:

“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”

So, that is not her concern. She is not trying to 'legislate from the bench' by noting that in her opinion the majority interpreted a statute the wrong way & noting that the only way to fix it w/o the majority changing its mind is a legislative fix. If the court does something, why wouldn't a dissent flag it for others?

Posted by: Joe | Aug 25, 2013 6:15:49 PM

Paul, I think you are mixing two distinct issues in your phrasing of the post (and I read Marty as responding to that mixture). Justice Ginsburg was communicating two messages in her interview: (1) she is not retiring, (2) she thinks the current Court is the "most activist" in history and she strongly disagrees with its ideological direction. There is nothing at all political about the former; I agree that it is hard to understand the latter except as a political message.

My own view about Justices communicating messages like (2) outside of judicial opinions is more forgiving than yours. But my main point is that you can't say the entire interview is inappropriate given that I think communicating message (1) to a broad audience--essentially telling all the liberal blogs to stop conducting a morbid "Justice Ginsburg cancer remission watch" every June--is entirely proper. And I'm not exactly sure what "alternative means" of communicating to this audience you were envisioning, since any other forum for communicating this message would seem equally extra-judicial and political to me. For example, she could have said the same thing at the ACS annual meeting, but that would be a more political forum, not a less political one.

Posted by: TJ | Aug 25, 2013 6:21:09 PM

I'm with you, Paul. And I'm with Andy on Ledbetter.

Posted by: anon | Aug 25, 2013 6:32:43 PM

Perhaps Paul meant "political" in the obviously political sense in which "activism" is being used in the interview. Justice Ginsburg says that activism means a "readiness to overturn legislation." But it's hard to credit that meaning as a bad thing--or as something that requires her to hold down the fort of resistance as the world collapses around her--from a Justice who either authored or joined the opinions that Justice Ginsburg did in Romer v. Evans, Atkins v. Virginia, Roper v. Simmons, City of Boerne v. Flores, Zelman v. Simmons-Harris, Kennedy v. Louisiana, Lawrence v. Texas, United States v. Windsor, Stenberg v. Carhart, Arizona Christian School Tuition Org. v. Winn, Gonzales v. Carhart, and so on (there must be a few I'm forgetting). "Activist," here, is patently political, as in, 'that with which I disagree--politically.'

Posted by: Marc DeGirolami | Aug 25, 2013 6:40:14 PM

AF -- i don't think there is anything unseemly or unusual about a judge suggesting legislative improvements to the statute at issue in a case. that's standard fare, and should be encouraged. but actually framing the resulting legislation on your wall, and calling it one of your "proudest achievements"? come on.

and I don't think Ginsburg is an "activist" judge, even though she labels her colleagues that way. she actually strikes me as rather measured. no one on the Court strikes me as an activist, in fact. but the optics of hanging legislation on your wall like a trophy are bad. it'd be totally normal to hang in her office as the head of the ACLU, but in judicial chambers? Rubs me the wrong way, but in the end, who really cares what someone keeps in his or her office. I was just noting something that I thought was funny from the article.

Posted by: andy | Aug 25, 2013 7:16:12 PM

"Activist," here, is patently political, as in, 'that with which I disagree--politically.'

The article notes her own definition:

In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

So, no, "here" it doesn't just mean that. It would be helpful, though not quite her responsibility in an interview, for the author of this piece to note something like "well [listing some] you joined many opinions that overturned legislation, so do you consider yourself an activist."

And, she can explain perhaps the standards she would use, since obviously she supports judicial review, including striking down legislation, when it is appropriate. Courts are "active." The term "activism" is usually used in a negative way to mean "wrongful activism." It is a matter of degree and line drawing though it is often used as a mostly useless epithet. But, she didn't use it that way.

Posted by: Joe | Aug 25, 2013 10:42:55 PM

I'm not convinced that using a special definition to hurl an epithet necessarily makes it more dignified.

"Is the Senator from [State] a homophobe? Well, if you define homophobe as someone who didn't support my bill, well, yeah, he's a homophobe."

Sounds pretty bad too me.

Regarding Justice Ginsburg, she hurled a loaded term at her colleagues. Given how frequently the term "activist" is used to disparage judges (of all ideologies), I don't think it's appropriate for any jurist to use that term to describe here colleagues, if she believes that judges of all stripes faithfully discharge their duties and if she wants to encourage public confidence in the court system.

I also think that heated rhetoric from Scalia, who accuses his peers of signing onto the "homosexual agenda" and so on, is also unnecessary and inappropriate.

Posted by: andy | Aug 26, 2013 1:12:05 AM

I enjoy Professor Horwitz's blogging. And to steal one of his best lines, search me if I know what the hell he is talking about when he finds Ginsburg's "obvious political overtones" inappropriate. Arguably, it is inappropriate for justices to comment publicly on partisan questions that are unrelated to the issues of constitutional principle and legal policy that they deal with routinely. But here, the only partisan issue that Justice Ginsburg addressed (and presumably the occasion for the interview) she addressed in a markedly non-partisan way, declaring that she would not take party affiliation into account in deciding when to retire. Her remaining comments were squarely within the scope of what she has previously written in opinions and dissents. If anything, she was more circumspect than she has been in her dissents, where, for example, she accused the Court of "hubris" for striking down the VRA.

In any case, the idea that it is "inappropriate" for justices to confirm in interviews what they have written publicly makes very little sense to me. It's one thing to maintain the fiction -- which is not entirely a fiction -- that the justices are above partisan politics. That is probably a good thing. It's quite another thing to pretend that the justices do not hold the views that they regularly articulate in their opinions. That is just weird.

Posted by: AF | Aug 26, 2013 10:11:51 AM

Thanks for the comments. Marty, I very much appreciate the exchange. Yes, I mean "political" not in a partisan sense or in the sense of a concern with current votes or elections, but in a broader sense, something closer to the discussion in Posner's Foreword or in Marc's comment. I don't think there's a precise algorithm to tell us when such statements or discussions by justices are "political" in this sense or when such statements are inappropriate, so I appreciate the difference of opinion. That said, I think my broader sense of what constitutes "political" is still not unlimited. And, specifically, I don't think that any statement that is extrajudicial, non-academic, or intellectually uninteresting is "political." Rather, I think of the latter two qualities as qualities that might add a saving grace to an extrajudicial statement by a member of the Court *about* the Court, its business, nominations and retirements, etc. A more or less academic (in the Stanley Fish sense, basically) statement is less likely to take on the colorations of forceful advocacy or attempts at influence or intervention in public debates that, to my mind, are more likely to make such a statement inappropriate when delivered by a sitting justice. And, at least personally, I am more likely to excuse questionable extrajudicial statements if they are more novel, interesting, etc. At least there's a value-added there, so that I'm not just left with the sense that the justice who's speaking is trying to either preach to the converted or twit her adversaries.

Let me also emphasize, in response to various comments above, that for me "unnecessary" is also an important part of my judgment about when such a statement is "inappropriate" or unwise. If it could be said in the course of opinions, or could be said more modestly or privately or with less impact on live public and/or political discussions, or has already been said extrajudicially, I am more likely to conclude that such a statement is inappropriate or unwise. That's my view here. Justice Ginsburg has already made clear that she will retire when she feels it's time and not before. And she has already delivered her views about the current majority. I don't think she needed to tell the Times either of these things again; I think doing a prominent (because) rare interview with the Times tends to blow that story up; and therefore I think she would have been wiser to decline the interview request or keep her statement simple, modest, and boring.

Joe, I think your point is well-taken: She gave a wide-ranging interview and the Times of course made its own selections of emphasis. I would say, though, that the Times is a pretty prominent platform and that this was part of the risk calculus in deciding whether or not to do the interview.

Ken: Yes, of course I think some public statements made by other Justices were unwise and inappropriate.

I don't think that's a full response to every question or comment but it will have to do. Again, thanks for the comments.

Posted by: Paul Horwitz | Aug 26, 2013 11:34:30 AM

While I am reluctant to comment because I just hate it when the author of the blog posting responds to all comments, or when a debate breaks out among the comments, Justice Ginsburg's interview seems worth a comment here. The whole thing seemed a little sad to me -- here is this very old Judge proclaiming she is responsible for the Ledbetter Act, that by itself, seems kind of sad . . . who knows how influential she was but even more important, shouldn't she leave it to others to praise her achievements? And her refusal to resign because she enjoys being the Senior Justice just seemed so naive and sad -- it really does matter who appoints her replacement, and matters greatly, and she just ain't that good that she needs to stay. I understand she likes it and fears life when she retires but that too is all kind of sad. Really inappropriate interview but then again I feel strongly that she should have resigned last June, if not much earlier.

Posted by: anon | Aug 26, 2013 12:14:18 PM

Professor Horwitz, I don't think the difference of opinion is over the definition of "political." The difference of opinion concerns why, under your broad definition of political, any unnecessary extra-judicical statement that is "political" in this sense is inappropriate. I may be mistaken, but I don't believe you have addressed that issue.

Posted by: AF | Aug 26, 2013 12:18:51 PM

Surely she mentioned Ledbetter only because of the framed copy on the wall? I expect the interviewer asked her about it, and at that point, it seems reasonable for her to say she was proud. If she had been coy instead, that would have been odd (and reported even more oddly), and if she had taken it down, that would be, well, oddly deceptive. I am not sure I would lay criticism at her feet on the Ledbetter mention.

Posted by: E | Aug 28, 2013 2:47:34 PM

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