Bench Memos

Ginsburg’s Astounding Indiscretion

Unbelievable.

“Ruth Bader Ginsburg Thinks Americans Are Ready for Gay Marriage” is the title of this Bloomberg article on an interview with Ginsburg yesterday. According to the article:

The 81-year-old justice discussed the public’s increasing acceptance of gays against the backdrop of resistance by Alabama officials to a federal court order that took effect Monday and made it the 37th gay-marriage state. With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right.

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

How can Ginsburg possibly think that it’s proper judicial conduct for her to speak out on this issue while the marriage case is pending before the Court? If she had any sense of her duty to maintain both the appearance and the reality of impartiality, she would recognize that she is now obligated to recuse herself from the case. But of course she won’t.

Ginsburg is similarly amazingly indiscreet in the interview in her comments about Obamacare, a major challenge to which is, of course, also pending before the Court:

Asked about the president’s legacy, Ginsburg pointed to the law, known as Obamacare, which she voted to uphold in the 2012 case.

“Our country was just about the only Western industrialized country that didn’t have universal health care for all of the people, and he made the first giant step in that direction,” she said. “That’s certainly one of the things he will be remembered for.”

And her public advertising of her “rapport” with President Obama also provides plenty of reason to question her impartiality in the Obamacare exchange-subsidies case or any other case affecting what “he will be remembered for”:

Ginsburg said she met Obama soon after he was elected to the U.S. Senate in 2004. Her son, James, had worked on Obama’s campaign, and Ginsburg asked to be seated next to him when the justices held their traditional dinner for new members of the Senate.

“There was a rapport from the start between us,” said Ginsburg, who receives a hug from the president every year as he walks to the podium to deliver his State of the Union address.

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