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Sunday, November 14, 2021


Since I'm busy avoiding work, I'll take a moment to answer Howard's question: Does what the late Justice Ginsburg said about Colin Kaepernick tell us anything about how she would have voted in the flag-burning cases? My view is that the answer is a clear no. I'm not sure much evidence is needed. But while tributes are generally the last place one should look for the truth or for evidence of sincerely held views, I would just note that in her memorial tribute to William Brennan, 111 Harv. L. Rev. 3 (1997), Justice Ginsburg wrote, in a tone of implicit approval, of a variety of his noted opinions, and included Johnson and Eichman, with a description of those cases as being about "the tolerance the First Amendment exacts even for flag burners." Whether the flag-loving rhetoric in that sentence was sincere, obligatory, or somewhere between the two, I doubt she would have had any difficulty casting a speech-protective vote in those cases. 

None of this is meant to suggest that Ginsburg should have said what she did, or that Couric acted anything other than improperly in attempting to sanitize the interview to protect Justice Ginsburg's reputation. (As Couric saw it. The interesting thing about the episode is that while Couric's perception might be accurate with respect to elites, surely Ginsburg's off-the-cuff reaction to Kaepernick was close to the center of public opinion at the time. Couric may have thought, after literally consulting with other members of the establishment, that leaving in Ginsburg's comment would embarrass the Justice. Nevertheless, ultimately her editing had less to do with protecting Ginsburg's general public reputation than with safeguarding her club membership. Asking millionaire journalists for their thoughts on public opinion is like going to Marie Antoinette for tips on baking.) Couric clearly acted wrongly, and doubly so because her stated reason for editing out the remark--that Ginsburg "was elderly and probably didn't fully understand the question"--was far more newsworthy than the particulars of how she answered the question. Nor does it matter to me one way or the other what Ginsburg's celebrity trainer has to say about the matter. Ginsburg shouldn't have answered the question not because she answered it rightly or wrongly, but because she shouldn't have answered it--or given the interview--at all.

Whatever Ginsburg's thoughts on the flag, the national anthem, or protests were, however, I think her vote in Johnson and Eichman would clearly have been the same as Brennan's.     

Posted by Paul Horwitz on November 14, 2021 at 05:22 PM in Paul Horwitz | Permalink


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