Bench Memos

Why Is Justice Ginsburg Speaking Publicly on Abortion Policy?

Beyond the passage I’ve highlighted in which Justice Ginsburg comments negatively on the Texas abortion law now under challenge in the Fifth Circuit, Ginsburg somehow sees fit in her New Republic interview to speak on all sorts of other matters related to abortion policy—how the overturning of Roe v. Wade “would be bad for non-affluent women”; how both courts and legislatures “have been moving in the wrong direction”; and how unfortunate it is that there “is no big constituency out there concerned about access restrictions on poor women.” She even offers her advice on how such a political constituency could be created. (Among other things, despite her infamous comments a few years ago about “populations that we don’t want to have too many of,” Ginsburg volunteers, “I think it would be helpful if civil rights groups homed in on the impact of the absence of choice on African American women.”)

How can Ginsburg possibly think it proper to speak her mind openly on this matter? How are her comments conceivably consistent with the judicial duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”?

To be sure, some of her comments might be said to address her constitutional views on abortion. But that’s certainly not the case for all her comments. And even where she might be addressing her constitutional views, she isn’t simply stating what she has previously written (or joined) in published opinions. So why is she speaking out publicly? 

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