Justice, Police, Ruth Bader Ginsburg

For Justice Ruth Bader Ginsburg, The Flag Is A Legal Issue, Black Lives Are Not

Justice Ruth Bader Ginsburg does not have to know WHY you are protesting the flag to know that you are allowed to do it.

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(Photo by Joanne Rathe/The Boston Globe via Getty Images)

(Photo by Joanne Rathe/The Boston Globe via Getty Images)

Why did Ruth Bader Ginsburg feel comfortable spouting off about Colin Kaepernick — calling his protest “dumb and disrespectful” — only to later admit that she was “barely aware” of his protest and what it was all about? Why is RBG notoriously aware of exactly who is running for President, but missed the memo about well-publicized protests against the brutality of law enforcement?

Justice Ruth Bader Ginsburg has a job, a job that she is fantastic at. But that job does not require her to devote a single brain cell to the terrorism visited upon African-American males at the hands of the police. Oh, I’m sure she’s heard of some of these videos. Maybe she’s even seen one. But it’s not her problem.

The flag, on the other hand, is her problem. There are consistent federal issues about protected speech. She deals with this stuff all the time. She doesn’t need to know why some person that she’s probably never heard of is pissing on the flag for some reason she doesn’t know. If you ask her about the flag, she’s got a standard answer. Part I, we heard: “It’s dumb and disrespectful.” Part I was blasted all over the everything. Part II was also there, but people paid less attention to it. Here’s her full response to Katie Couric:

Couric: “How do you feel about San Francisco 49ers player Colin Kaepernick and other NFL players who have basically refused to stand for the National Anthem?”

Ginsburg: “What do I think? I think it’s really dumb of them. Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. But it’s dangerous to arrest people for conduct that doesn’t jeopardize the health and well-being of other people. It’s a symbol they’re engaged in.”

“I WOULDN’T LOCK A PERSON UP FOR DOING IT.”

That’s the accepted, progressive response to these flag issues. That’s what we’ve been trained to say: “Disrespecting the flag? OMG, how awful. I’m an American, please do not beat me with your truck nuts. But… arresting people for doing something SO HORRIBLE and dumb and stupid is not a good idea. HTH. NO APPLE PIES were harmed during the preparation for this answer.”

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Justice Ruth Bader Ginsburg does not have to know WHY you are protesting the flag to know that you are allowed to do it. She also doesn’t need to know why you are protesting the flag to know that she’s supposed to call you dumb. It’s like how I don’t have to know which invisible deity you think cares about what you eat for dinner to know that I’m suppose to say “I respect your faith” and “… even though it makes no rational sense whatsoever.”

Justice Ginsburg is required to have opinions on flags. That is part of her job. Does she have a opinions on dead black people? Maybe. But that’s not really her part of the store. The Constitution explicitly reserves the police power to the states. From Justice Ginsburg’s perspective, there are prosecutors who are in charge of figuring out if the cops are behaving badly. If they are, somebody will sue them (she assumes). If someone appeals a police brutality case to her desk, she’ll considered it. If a convicted cop (haha, yeah right) appeals his or her case all the way up to the Supreme Court, she’ll take a look. But the day-to-day problem of state-sponsored terrorism against the African-American community? That’s not her concern. The pained outcry of African-American mothers and wives who have to watch on video as their sons and husbands get shot to death are issues for somebody else to deal with.

Justice Ginsburg’s got opera tickets. Justice Ginsburg’s got an entire system that is supposed to be working to sort this stuff out. Why would she be “aware” of protests against police brutality? Ain’t squat she can do about it. She’s never going to get the case “Black People v. American Police.” If she did, she’d kick it back down to the state court on jurisdiction, or dismiss it entirely based on standing. She’s got no dog in this race.

If we have learned one thing from all these videos of all these deaths of black people at the hands of the police, it’s that police killing black people is PERFECTLY LEGAL IN THIS COUNTRY. The police are constitutionally protected, statutorily protected, and socially protected. WE CAN’T EVEN BRING CHARGES AGAINST THE POLICE MOST OF THE TIME.

For something to rise to the purview of Justice Ruth Bader Ginsburg, there has to be a legal controversy of note. But there is no legally interesting controversy about cops slaughtering blacks for traffic violations. The state of the law is: police shouldn’t kill black people, unless they say they have to, in which case, we should just take their word for it.

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Asking Justice Ginsburg to care or even be aware of why that’s a problem is like asking me to be aware of the squirrels who protest me raking up all their hard-stored acorns. “Squirrels getting into my pile of leaves is dumb and disrespectful… but I won’t use poison to make them stop.”

I found RBG’s attempts to walk-back her statements about Kaepernick more troubling than her initial comments. But the horror is not that she didn’t know about the protests, it’s that she has no earthly reason to be any more informed. Making black lives actually matter is so far away from reality that the most liberal Supreme Court justice of my lifetime can be honestly clueless as to what all the fuss is about.

Maybe black people should have some kind of flag? Those things really seem to get people to pay attention.

Ginsburg: Sorry for criticizing Kaepernick anthem protest [Associated Press]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. Don’t get me wrong, the Justice who is 95% my friend is not my enemy.

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