From the Atlanta Journal-Constitution:
U.S. Supreme Court Justice Ruth Bader Ginsburg made clear her perspective on some issues when she spoke Sunday at an Atlanta synagogue.… The justice said she did not expect the court to overturn Roe v. Wade, the decision that made abortion a constitutional right. But she contended that even if the court disposed of the right, abortion would still be widely available. The difference would be that middle-class women would be able to travel to a state that allowed the procedure, while poor women would be trapped — much as in the days before Roe v. Wade, when a woman who could afford to do so could go to New York, California or Hawaii to have an abortion. “It would have a devastating impact on poor women,” she said of any reversal of the 1973 decision.
Now imagine this hypothetical story:
U.S. Supreme Court Justice Antonin Scalia made clear his perspective on some issues when he spoke Sunday at a Catholic church in Atlanta.… The justice said he expected the court to overturn Roe v. Wade, the decision that made abortion a constitutional right. But he predicted that if the court disposed of the right, abortion would still be widely available. The difference would be that the people of many states would support the enactment of permissive abortion laws. “Abortion will continue to have a devastating impact on unborn babies,” he said.
Perhaps my parallel isn’t exact, but any comments by Scalia comparable to Ginsburg’s would be prominent news in the nation’s national papers, would be criticized by supposed legal ethicists, and would elicit scathing editorials condemning his violation of the Establishment Clause and calling for him to recuse himself from abortion cases. I am not contending that Ginsburg’s remarks deserve that full response, though they do seem strikingly politicized and inappropriate—and well beyond actual remarks by Scalia that have been treated as far more controversial.