Bench Memos

Justice Ginsburg as Chatty Cathy—Part 4

In her recent National Law Journal interview, Justice Ginsburg somehow feels free to comment publicly on an issue that is currently before the Court (in the certiorari stage): what the Court’s anti-DOMA decision in United States v. Windsor portends for the battle against state marriage laws. Here’s the exchange:

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity

I of course believe that the state marriage laws under attack treat individuals “with equal dignity.” But it seems quite clear that Ginsburg is broadcasting a very different message. And even if one very charitably assumes that she is not opining on the bottom line, why is she speaking out on the issue at all?

To take a wild hypothetical: Imagine for a moment that the National Law Journal had posed the question to Chief Justice Roberts rather than to Justice Ginsburg and that the Chief Justice had responded that Windsor’s “main theme is federalism.” I think that it’s very safe to say that the Chief Justice would have been roundly denounced for speaking out on an issue that is already before the Court.

Let’s set aside the question whether Ginsburg’s comments ought to require her to recuse herself. After more than two decades on the Court, does Ginsburg really not know when she ought to just be quiet? 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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