Stop Your Freakout -- Justice Ginsburg Absolutely Shouldn't Recuse Herself

Conservatives are up in arms because Justice Ginsburg talked about abortion. They need to chill out.

The latest output from the rage machine is that Justice Ginsburg has to recuse herself from hearing an expected appeal of the Texas abortion regulation that is essentially:

Look, we found a way to ban abortion without saying those words. We’re so f**king clever!

The law is in front of the Fifth Circuit now, but we all know this middle finger to Roe will make it to the Supreme Court eventually. Enter the right-wing punditry eager to drum up controversy in the hopes of removing a reliable liberal justice from the panel. At issue is a recent New Republic interview, where — in between discussing the relative merits of Jazzercise — Justice Ginsburg made the entirely indisputable observation that the law will shut down most abortion clinics in Texas. Oh no! She’s pre-judged the case!

Everyone cool their jets. Justice Ginsburg shouldn’t recuse herself for several reasons…

Here’s the passage at issue:

JR: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either. Think of the Carhart decision or going way back to the two decisions that denied Medicaid coverage for abortion. I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction. It will take people who care about poor women. The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel can’t. There is no big constituency out there concerned about access restrictions on poor women.

Sponsored

First of all, are we blaming her for being informed? She’s a Supreme Court justice, not a lay juror. Frankly, we should be much more worried if she wasn’t aware of the Texas law and its not-at-all-disguised intent. There was an 11-hour filibuster over this thing! The Texas gubernatorial race is entirely shaped by it. Getting bent out of shape that Justice Ginsburg is aware of a legal issue before it hits her desk is another manifestation of America’s weird fascination with putting the Supreme Court on a pedestal. Like she’s some kind of machine who should only learn facts when presented in memorandum form.

Did we not think Ginsburg is pro-choice? We can decry the politicization of the Court — there are arguments both ways on that — but let’s not pretend politicization isn’t there. Has she pre-judged this case? Probably. But so have all the other justices and everyone knows it. Justice Ginsburg is just willing to say it. There’s decorum and then there’s stupid.

And this isn’t like Justice Scalia’s hunting vacation with Dick Cheney right before Dick Cheney was a party before the Court. Even though no one seriously thinks Justice Scalia’s decision was swayed by allowing himself to be entertained by a party appearing before the Court. But in that case, the appearance of impropriety involved in taking a gift from a litigant necessitated recusal (or would have if the Supreme Court abided by any standard of ethics) because it looked to many like justice being bought and sold regardless of the merits. But expressing an opinion about the merits of a law? That’s not corruption, that’s their job.

While some will think this point goes too far, I’d also note that it’s curious how much more of an uproar there is when Judge Shira Scheindlin says she won’t be biased in favor of prosecutors and gets benchslapped or when Justice Ginsburg criticizes abortion restrictions. And there are little lines like this one (“Justice Ruth Bader Ginsburg continues to hand out interviews like Halloween candy”) that go beyond the substance of what she’s saying and suggest there’s something unseemly about her speaking at all. There’s definitely an element of “those girls need to shut up and understand the rules.” And those rules apparently say Justice Scalia can advocate overthrowing the government, but Justice Ginsburg can’t talk about abortion.

There is something to be said for the fact that Justice Ginsburg is expressing a lack of faith in the Texas legislature because of this specific law. Professor Josh Blackman thinks this elevates the problem to a different level:

Sponsored

“What makes (her) comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other,” Blackman said. “Scalia and Ginsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents — not specific cases that may come before the Court.”

And that’s a fair, nuanced point (which one would expect because he’s a professor and stuff). But even under these circumstances, the recusal call is still all about creating an artificial “high priesthood of the law.” A cloistered priesthood where it’s perfectly acceptable to rail against or for abortion in the abstract, but demonstrating knowledge of specific facts is taboo. Justice Ginsburg didn’t compromise the institution by adding a name to her well-known feelings on abortion regulations. Name-checking Texas hasn’t changed anyone’s perception of the Court, Justice Ginsburg, or the outcome of this case, which will be 5-4 one way or the other depending on Justice Kennedy no matter what. So don’t listen to the haters RBG, you stay right in that seat for this case.

Now, if there were a case pending about Jazzercise…

Ruth Bader Ginsburg Is an American Hero [New Republic]
Recuse yourself! Conservatives freak out after Ruth Bader Ginsburg slams Texas abortion law [Raw Story]