Justice Ginsburg on gay marriage, Hobby Lobby, and nervous liberals

August 1

The Justices are publicly unburdening themselves on major issues before the Court with much greater frequency and candor in recent years. In a wide-ranging interview with Mark Sherman of the Associated Press, Justice Ruth Bader Ginsburg offers some glimpses into her thinking on three controversial issues and gives liberals who fret about her health a piece of her mind.

On gay marriage: “I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” Ginsburg said. “If a case is properly before the court, they will take it.”

There are two interesting takeaways from this remark. One is the comparison of challenges to prohibitions on same-sex marriage to challenges against bans on inter-racial marriage, which the Court put off deciding until Loving v. Virginia in 1967 when only 16 states still banned it.  We don’t have the transcript of the interview, so it’s possible the precise question Sherman asked primed her for the comparison. But if there was any doubt that comparisons to Loving would find a receptive audience among some Justices, that should now be over. Anyone making that comparison is pointing in only one direction in terms of result.

Second, a few Court-watchers had previously interpreted Justice Ginsburg’s remarks about the Court having moved too quickly on abortion rights in Roe to mean that she would want to move slowly on same-sex marriage. If she ever really harbored hesitation on the issue, she’s gotten over it. She did note that the case would have to be “properly” before the Court. But at the very least the Utah case will be there shortly and in that case the state is defending its marriage limitation.

On Hobby Lobby, the decision interpreting federal law to allow for-profit corporations to refuse on religious grounds to cover employees’ contraceptives expenses, Justice Ginsburg speculated about how gender might have influenced the Justices:

“I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby,” Ginsburg said. She said, though, that she hasn’t lost hope for the five men on the court who formed the majority in favor of Hobby Lobby. “As long as one lives, one can learn,” she said.

It’s not clear that she’s right about gender driving the result. A Supreme Court of nine women appointed by President George W. Bush might well have decided the case the same way the Hobby Lobby court did. Conversely, a Court comprised of nine men appointed by President Obama might have come out the way the dissenters did. In fact, the 5-4 split did not mirror gender lines; it perfectly matched the political party affiliation of the appointing presidents. That may be an accident, but close study of federal-court appointments in recent years suggests it’s not. It’s also doubtful that there’s a necessarily gendered way to understand, say, the meaning of “person” for purposes of the Religious Freedom Restoration Act or the Dictionary Act, or for how to determine the interplay of these two statutes.

To be fair, Justice Ginsburg was probably making the deeper but still controversial point that women and men have different experiences in life–especially when it comes to reproduction–that will incline them toward a more or less sympathetic view of the compelling need for affordable access to certain contraceptives and to the necessity of ensuring that access through health-coverage mandates.

And finally Justice Ginsburg, who was born eleven days after Franklin Roosevelt took the oath of office for the first time, directed a few comments at progressives who think she should retire now before Republicans take control of the Senate and block a liberal Obama appointee to replace her:

“Right now, I don’t see any sign that I’m less able to do the job,” she said. She directed a feisty response to law professors Randall Kennedy of Harvard Law School and Erwin Chemerinsky, dean of the law school at the University of California at Irvine, who have called on her to step down now. “So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?” she said.

Absent elimination of the filibuster for Supreme Court appointments, she’s right that she’s more congenial to progressives than her confirmable replacement this summer would be. But liberals might still prefer a less liberal replacement for her now rather than taking the chance that only an even less liberal one would be confirmable if Republicans control the Senate starting in January 2015. Worse yet from their perspective, if she leaves the Court after a Republican presidential victory in 2016, she would be replaced by a conservative Justice whose votes would surely change outcomes across many areas of federal policy and constitutional law. Of course, the Republicans could fail to take the Senate this November and/or the GOP nominee could lose the presidential race in 2016 and/or Justice Ginsburg could serve ably for another decade or more (Justice Stevens retired at 90 and was as sharp as ever). There are a lot of contingencies and error-prone judgments built into these sorts of strategic calculations. It’s anybody’s guess, but it’s only one person’s decision. And she’s made up her mind. She’s staying.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
Comments
Show Comments
Most Read National
Next Story
Kenneth Anderson · July 31