Monday, July 11, 2016
Judges--and, Perhaps, Journalists--Behaving Badly
I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.
The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:
[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment.
I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.
From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story.
There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.)
The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.
So first, I think the missing language has been restored:
Second, I find the Heller remarks rather anodyne - she was, after all, a Heller dissenter and the decision has hardly generated, yet, the kinds of reliance interests that might sew some doubt as to her position on whether it should be overruled - but I was fairly shocked by her remarks on how Justice Kagan would have voted in Fisher had she not been recused, how Scalia would have voted in U.S. v. Texas had he not died, or how Garland would vote in cases were he on the Court (his appointment, she says, would mean "that I’ll be among five more often than among four"). Talking about how a recused Justice would have voted and suggesting that a case is especially solid precedent because the recused Justice can be counted on to reaffirm it seems especially unwise,* but the general idea that Ginsburg can predict how Justices or nominees who've never deliberated with her on cases (because they're not on the Court, were recused, or died) would have voted or would vote in those cases on the basis of those judges' ideology and the cases' partisan valence is usually the sort of thing that members of the Court in their public remarks try to deny, even if unconvincingly.
*From the article: The affirmative action case, Fisher v. University of Texas, was decided by just seven justices, 4 to 3. Justice Elena Kagan had recused herself because she had worked on the case as United States solicitor general.
But Justice Ginsburg said the decision was built to last. “If Justice Kagan had been there, it would have been 5 to 3,” she said. “That’s about as solid as you can get.” “I don’t expect that we’re going to see another affirmative action case,” Justice Ginsburg added, “at least in education.”
Posted by: Asher Steinberg | Jul 11, 2016 2:39:07 PM
I agree with Asher w/r/t Heller. I read her comments as simply describing the procedure that might allow for its reconsideration--if Congress enacts new legislation, the challenge would be brought that might put Heller on the table. But then I thought I was being too forgiving.
Posted by: Howard Wasserman | Jul 11, 2016 3:57:53 PM
Actually, I change my mind about Heller; she seems to be saying that a cert petition seeking to overrule Heller could easily be granted with the present makeup of the Court, and perhaps semi-subtly hinting that such a cert vehicle would be a good case to take up if Garland or someone like him is confirmed. Note, curiously, that she thinks overruling Citizens United is "impossible," but that overruling Heller is not. How could this be, given that Heller could only be overruled, it would seem, by the same new liberal majority it would take to overrule Citizens United? This could be read a couple ways: (1) she thinks that even Garland or some other Democratic nominee would vote to uphold Citizens United (which I find somewhat plausible but hardly certain); (2) she believes that Kennedy might be changing his mind about Heller, but believes (obviously correctly) that a change of heart on Citizens United is impossible. Since it's hardly "impossible" that Garland or a Clinton nominee would vote to overrule Citizens United, she appears to be making a claim about the Court as it stands, and since Liptak contrasts what she says about Citizens United with what she says about Heller, it almost appears that when she suggests Heller's vulnerable, she's hinting at a present-tense vulnerability coming from somewhere in the Heller majority. (Heller couldn't be overruled 4-4, could it? At most, a lower-court ruling tenuously distinguishing Heller could be affirmed without precedential effect.) If that's what she's hinting, that really is rather inappropriate. If she's merely suggesting that Heller would be vulnerable with a new nominee, that's obvious and not so troubling - but again, hard to square with the comment about Citizens United.
Posted by: Asher Steinberg | Jul 11, 2016 4:14:27 PM
I thought the comment about Trump over the line and overall think RBG (with whom I'm ideologically and otherwise sympathetic) is overexposing herself. In that respect the "Notorious RBG" phenomenon etc. probably didn't help (it would be interesting to here from the authors of the book). Her husband died a few years ago and she seems to have gone into "don't give a f" mode at times. Sorry to be crude but she seems a bit too "notorious" in her public statements. She might want to take a sabbatical. Compare, e.g., Breyer, who has put himself out there, even on late nite talk shows, without going as far. A nudge from a friend she trusts might be helpful. A bit of an intervention. Scalia needed one too though he started to go over the line on the bench too.
Posted by: Joe | Jul 12, 2016 12:41:23 AM
Regarding Heller, the Supreme Court this term decided per curiam a case involving stun guns. The Court could have let stand the lower court and followed recent trends and avoided 2A cases. This would have upheld the ban. And, the curious facts (public place, stun gun, etc.) led some to think this would happen.
The Court instead relied on Heller as precedent and put forth a narrow opinion but it still suggested in some fashion even in public cases certain "arms" would be protected. Alito (with Thomas) concurred with a strong opinion finding the per curiam overly weak. It's tea leaves reading, but seems to me that Heller still has at least four votes. Anyway, the case allows for a range of regulations. What is to overrule in practice really? Handgun bans in a few cities?
Posted by: Joe | Jul 12, 2016 12:49:11 AM
Is the problem not perhaps that nobody is surprised by her views? That everybody knows her ideological commitments? If Justices are basically politicians in robes, should not we be open about it?
I get that this may be thought to decrease respect for the judiciary but if the respect is based on a false perception of neutrality than it is unearned respect and it is a good thing if people do not respect them on false grounds.
Not that I think there is any great number of people in America who think judges are engaged in some sort of technical, non-partisan work when they interpret the constitution.
Posted by: Jr | Jul 12, 2016 5:06:50 AM
I think that Jr is correct--the problem is that no one is surprised that Ginsburg is hinting that she's made up her mind about the next gun control case, the next higher education affirmative action case, and the next immigration case. The troubling aspect to me is that to Ginsburg, the facts of the case (and the writing in the statutes and the Constitution) matter less than her sense of what is right and what is wrong.
It would be one thing if her opinions were binding only on the federal government. However, under our current federalism model, 8/9 unelected justices decide not only what governs the behavior of the federal government, but also the behavior of the several states and private businesses operating within those states. Instead of laboratories of liberty, we have enforced uniformity, with uniformity currently dictated by the whims of Anthony Kennedy.
Posted by: HokieEngineer | Jul 12, 2016 4:31:18 PM
I think it quite obvious that Ginsburg was putting out the Court's version of a call for papers--a "call for cert petitions" if you will. Kennedy is getting on in years, and I think he's become very concerned about his legacy. Thus, his tortured explanation for his change of heart in the Obergefell decision. As a result, I think Kennedy has also switched regarding this social issue, giving a 5-3 overruling of Heller.
Posted by: YesterdayIKilledAMammoth | Jul 12, 2016 4:51:26 PM
"A nudge from a friend she trusts might be helpful. A bit of an intervention."
Do you know any 83 year olds? Not only is she 83 but she's the extremely unusual 83 year old that is still at the top of her chosen career. I'm sure in some ways it's a very lonely place to be.
Posted by: Anon | Jul 12, 2016 8:03:45 PM
"Still at the top of her chosen career."
Of course, the lifetime appointment helps with that. Don't find many of those in other professions.
Posted by: YesterdayIKilledAMammoth | Jul 12, 2016 8:10:49 PM
>>> "the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases"
If Scalia's long history of public pronouncements that there was no legal basis for allowing gay marriage did not lead to his recusal in the Hollingsworth and Obergefell cases, then what would be the basis for Ginsburg's recusal now?
Posted by: Anon | Jul 13, 2016 12:39:33 PM
Of course when you reach a certain age it becomes unseemly to take witless blowhards seriously. The appearance of taking them seriously does more harm to your self regard than any damage they can do you. Besides post Bush V Gore , the leering Alito, the bloviating swollen bigotry of Scalia and the precedent ignoring jurisprudence of Thomas why should we give a fig for the decorum of the court.
Posted by: Antoine Doinel | Jul 15, 2016 1:33:25 PM