Ruth Bader Ginsburg has fallen out of favor with some progressive liberals after she dismissed Colin Kaepernick’s refusal to stand for the national anthem as “dumb and disrespectful.”
In a recent interview with Yahoo News’s Katie Couric, Ginsburg—the 83-year-old Supreme Court justice known as “Notorious RBG” to her millennial devotees—said it was “stupid,” “arrogant,” and “ridiculous” for the San Francisco 49ers quarterback and other National Football League players to protest police violence by refusing to salute the flag, though she acknowledged their constitutional right to do so.
“I would have the same answer if you asked me about flag burning,” she said. “I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it… What I would do is strongly take issue with the point of view they are expressing when they do that.”
Journalist and immigration-rights activist Jose Antonio Vargas responded on Twitter that there was “nothing more patriotic than constructive criticism, which is what Kaepernick does.” New York magazine noted that Ginsburg’s position on this issue “puts her markedly to the right of mainstream liberal opinion,” while the legal director at ACLU’s Oregon affiliate tweeted that Ginsburg’s response “kind of shocks me. I guess I don’t agree with everything that passes through RBG’s lips.”
Certainly, many of Ginsburg’s progressive millennial adulators won’t agree with her on this one either.
But her opinion doesn’t suggest she opposes the Black Lives Matter movement or isn’t as liberal as we thought she was. While many of us prefer to operate in ideological echo chambers, Ginsburg has refused to do so.
Sure, it’s easier to view her comments as proof that she doesn’t care about civil-rights issues.
New York magazine attempted to make this connection, arguing that her “insensitivity to challenges to police authority is reflected in some of her jurisprudence” and citing several cases previously articulated by David Kinder in Current Affairs.
In a feature on “The Rise of the Ruth Bader Ginsburg Cult,” Kinder noted that she has been silent on Justice Anthony Kennedy’s condemnation of solitary confinement and suggestion that it may be unconstitutional. (“The example, in which Ginsburg sat out an opportunity to condemn the brutal and illegal conditions of America’s most marginalized people, is not trivial,” he wrote).
Kinder also cited two specific cases in which she voted, along with a majority of other justices, in favor of police authority and law enforcement; in one specific case, she was the only liberal justice to side with conservatives on criminal justice.
But surely this means Ginsburg’s opinions are more complex rather than simple or ideologically driven. That she had a close friendship with the most conservative justice in the Supreme Court, the late Anthony Scalia, is proof that she’s not an ideologue.
Whether you think Ginsburg is right or wrong about Kaepernick’s protest, you may see her comments in the context of President Obama, who, while defending Kaepernick, also called the protest “messy” and said that he hopes Kaepernick and other protesters will “understand the pain [their protest] might cause” veterans and relatives of those who lost their lives in combat.
Ginsburg’s blunt, unpopular opinion in this case doesn’t mitigate her reputation as a staunchly liberal justice who has fought for legalizing abortion and civil rights.
Whatever Ginsburg thinks or doesn’t think about certain hot-button issues, she doesn’t let her views cloud decision-making when bigger issues are at stake in the Supreme Court.
For example: In 2013, Ginsburg cast the only dissenting vote in the court’s ruling to limit affirmative action in a contentious case involving a University of Texas program to increase racial diversity.
She argued from the liberal position that universities should be able to use race-conscious admissions policies to achieve diversity.
“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious,” she wrote. “I have several times explained why government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’”
When the same case returned to the Supreme Court this year, the justices voted to uphold an affirmative action plan at the University of Texas—a ruling that was praised by both President Obama and civil-rights advocates.
The argument that Ginsburg isn’t tough on civil-rights issues, or doesn’t care about them enough, simply doesn’t hold up when we look at her 25-year record on the bench.
That people are shocked about her Colin Kaepernick comments reflects their straitjacket thinking on this issue—and their expectations of her to be a liberal automaton.
This divisive election has made it particularly tempting to put people in ideological boxes and dismiss their opinions accordingly.
Justice Ginsburg’s opinion may stray from the progressive mainstream in this particular case, but perhaps that’s because she’s a thinking person with a complex set of liberal values.
To demonize her unpopular opinion on Colin Kaepernick is to contradict the very values, like tolerance, that progressive liberals claim to support.