Three months after reaching age 82, Louis Brandeis decided in February 1939 that he could no longer handle the duties of a Supreme Court justice and retired after 23 years on the bench. Brandeis did not retire completely from public life, however. He devoted much of the remaining two years of his life to a cause he had long worked for: Zionism.
In years past, Justice Ruth Bader Ginsburg cited Brandeis as her judicial hero and his age upon retirement as the target for her Supreme Court tenure. As the target age approached, however, Ginsburg changed her tune.
For the past four years now, Ginsburg has forcefully batted away any suggestions for a strategically timed retirement with a liberal Democrat in the White House. Instead, she has vowed to stay as long as she is up to the job. She has detailed her personal health and physical fitness regimen as proof that she is.
In the process, Ginsburg, who will reach Brandeis's retirement age on June 15, has also become a celebrity. She is not merely the only Supreme Court justice to date to have a tumblr (“Notorious R.B.G.”) but the first justice ever to have a public following of this sort. And, in the process, Ginsburg has stepped right up to the ethical line, or perhaps crossed it, in regard to extrajudicial comments that could taint her supposed impartiality on pending cases.
Ginsburg’s critics on the political and legal right have seized on her comment to Bloomberg’s Greg Stohr that the American public could accept a Supreme Court decision recognizing a constitutional right for gay and lesbian couples to marry. “The change in people’s attitude on that issue has been enormous,” Ginsburg said. With several additional sentences of elaboration, Ginsburg concluded that it “would not take a large adjustment” for Americans to accept a court ruling for gay marriage rights in the cases to be argued in late April.
Credit Stohr with asking the gay marriage question in a way that did not ask her to say how she would rule. But Ginsburg’s remark more than tips her hand. Before she was a judge and many times since, Ginsburg has criticized the court for issuing its landmark abortion rights decision Roe v. Wade before the American public was ready for it. Given that history, Ginsburg’s remark violates the rule she set for herself at her confirmation hearing in 1993 that she would give “no hint” in advance of how she would rule on cases before the court.
Advocates and commentators on the right, including the anti-gay National Organization for Marriage (NOM) and the National Review’s columnist Ed Whelan, have cited Ginsburg’s remark as grounds for her to step out of the case. A strong critique by Josh Blackman, the South Texas law professor and Federalist Society favorite, stops short of calling for recusal. But given the Supreme Court’s practice on recusal leaving it up to the individual justice that is not going to happen anyway. Not even with the added criticism of Ginsburg’s role in officiating at a same-sex wedding.
In his column, Whelan also points to what he calls Ginsburg’s “amazingly indiscreet” comment in the Bloomberg interview describing President Obama’s health care reform as likely to be Obama’s “legacy.” As Whelan notes, the court is set to hear arguments in early March in its third politically charged legal challenge to Obamacare. Whelan also raises his eyebrows at Ginsburg’s remark in the interview that she has a “rapport” with Obama that goes back to her asking to sit next to him when the justices hosted newly elected senators for dinner after the 2004 elections.
After Bloomberg, Ginsburg sat for another interview with MSNBC’s Irin Carmon. Rachel Maddow introduced the interview by saying that Ginsburg “doesn’t do many interviews.” That is Brian Williams-style puffery. The list of Ginsburg’s interviews, dating from late last summer, includes Reuters, the Associated Press, Yahoo’s Katie Couric, Elle, National Journal, and perhaps others that I have forgotten. She has also sat for staged appearances at, among other places, the 92nd Street Y in New York and Georgetown Law School in Washington.
Other justices are also out in the public eye more these days than in the past. Note Antonin Scalia’s appearances promoting his co-authored book Reading Law and Sonia Sotomayor’s book tour for her memoir My Beloved World. Chief Justice John G. Roberts Jr. sat for a CSPAN interview in 2011; Elena Kagan did CSPAN right after her confirmation in 2010. Non-news media interviews include Clarence Thomas’s appearance with Yale professor Akhil Amar at the National Archives in September 2012 and Samuel A. Alito Jr.’s interview by a former law clerk at the Federalist Society’s banquet dinner in November 2014.
All of this is to the good for those who favor increased transparency at One First Street. But with Scalia as the one exception, none of the other justices besides Ginsburg has generated much news apart from Sotomayor’s and Kagan’s post-confirmation doubts about televising the court.
The inescapable conclusion is that Ginsburg’s celebrity has gone to her head. She was expansive in her MSNBC interview about abortion rights and women’s rights in general; she closed with the hope that she would be remembered as someone who helped “to make things a little better through the use of whatever ability she has.” In context, that sounds like a judge with an agenda who has forgotten the important symbolism of Lady Justice with blindfold and balanced scales.