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Wednesday, July 13, 2016

Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist

Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.  

I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.

So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.

Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.  

So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary. 

And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.

It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers. 

One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.  

More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post. 


Posted by Paul Horwitz on July 13, 2016 at 01:04 AM in Paul Horwitz | Permalink


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