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Supreme Court Justice Ruth Bader Ginsburg in the West conference room at the U.S. Supreme Court in Washington, D.C. (Photo: Nikki Kahn/The Washington Post via Getty)
Ruth Bader Ginsburg, the 82-year-old leader of the Supreme Court’s minority liberal wing, has cast aside her usual restraint in the past months and left little doubt where she stands on the upcoming gay marriage case.
The Supreme Court hears arguments in the case, Obergefell v. Hodges, on Tuesday, and will most likely announce in June whether states will still be allowed to ban same-sex marriage and refuse to recognize the rights of couples married in other states.
Ginsburg, a former civil rights lawyer, has been uncharacteristically outspoken in advance of one of the most significant civil rights decisions in decades. In August, she became the first Supreme Court justice to officiate at a same-sex wedding. Since then, she’s highlighted the big shift in public opinion on gay marriage in interviews and public speeches, breaking from her usual reticence when it comes to talking about upcoming cases. In February, Ginsburg told Bloomberg that it “would not take a large adjustment” for Americans to accept nationwide marriage equality, given the “enormous” change in people’s attitudes about same-sex marriage. New York Times columnist Gail Collins wrote in January that Ginsburg has a “strong hunch” about the way the case will turn out. “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions,” Ginsburg told Collins, referencing the 2012 decision that found the federal government must recognize same-sex marriages.
Two anti-gay-marriage groups, the National Organization for Marriage and the American Family Association, have since called on Ginsburg to recuse herself, arguing that she can no longer be impartial. They’ve also targeted Justice Elena Kagan for officiating at a same-sex marriage, asking her to step down from the case, too.
Legal experts say the calls for recusal are unwarranted, given the 2012 ruling that the federal government must recognize same-sex marriages in states that allow them. The constitutional issue at stake in the current case is whether states can ban same-sex marriage at all. Officiating at a same-sex marriage in a jurisdiction that already allows it does not call into question the justices’ impartiality on that question, according to Columbia Law School professor Jamal Greene.
The earlier gay rights decision gives Ginsburg more leeway to comment on the issue generally. Though the court did not find a fundamental right to marriage, the majority opinion held that same-sex marriages have an essential “dignity” like any other marriage and that the federal government does not have a good reason to discriminate against them by refusing to recognize them.
“She’s not saying anything that she hasn’t said in an opinion,” said Margo Schlanger, a former Ginsburg clerk who is now a law professor at the University of Michigan. “So it’s not like, ‘Wow, that’s a new one and the court hasn’t ruled on it since Baker v. Nelson,’” she said, referencing the 1972 case that upheld a state same-sex marriage ban after the court refused to hear the appeal.
A gay rights advocate in front of the Supreme Court in Washington, D.C., in 2013. (Photo: J. Scott Applewhite/AP)
Gay marriage and rights issues have come up often enough before the Supreme Court that it’s fairly clear where the justices stand on the fundamental question — with the exception of Chief Justice John Roberts, who some believe may depart from his earlier stance and support a fundamental right to same-sex marriage. (Anthony Kennedy, a conservative justice who sometimes sides with the liberal wing, has consistently ruled in favor of gay rights.)
“I don’t think there’s anyone who has any doubt where Justice [Antonin] Scalia or Justice Ginsburg is going to be when they take a vote on this issue,” said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “Whether they say things in public about it or not, there’s no doubt. She’s not going to recuse herself; Justice Scalia is not going to recuse himself. We’re just in an era where some of the justices are speaking more publicly than ever before.”
It’s rare for Supreme Court justices to recuse themselves. The U.S. Code lists reasons when they should do so, but the justices themselves get to decide when the rules apply to them. The disqualifying reasons include: a personal bias against any of the people in the case, a financial stake in its outcome or independent knowledge of the facts of the case outside of their roles as justices. (Kagan, for example, has recused herself several times when she has previously worked on specific cases as solicitor general for the Obama administration.)
Nothing in the code prohibits justices from publicly airing their opinions about cases, but it’s an unspoken rule that the nine do not comment on pending cases. Occasionally, justices have recused themselves after getting too loose-lipped about their opinions, even though they’re not required to. In 2003, Scalia — by far the most outspoken justice — recused himself from a case about whether the words “under God” in the Pledge of Allegiance in school classrooms violated the establishment clause after he told a Catholic group that he believed the words should be allowed.
But Scalia has long been known for spouting his opinions in off-the-cuff remarks to groups and the media. Until recently, Ginsburg has been known more for her discretion.
“I think she’s fairly restrained,” said her former law clerk Elizabeth Porter, now a law professor at the University of Washington. “She thinks fairly deliberately about everything that she says and writes.”
Ginsburg’s public appearances have been characterized more often by prepared speeches about her passions, like the opera or the role of women in the law, than by relaxed question-and-answer sessions about the court and its upcoming cases. Her dissents as a leader of the court’s minority wing have long been fiery and feisty, but until recently, her public appearances were more muted.
“She’s a tiny bit less cautious,” Schlanger, the former clerk, said. “I think that she’s talking more freely.”
Ginsburg speaks at an annual Women’s History Month reception on Capitol Hill in Washington, D.C. (Photo: Allison Shelley/Getty)
The world has noticed. Ginsburg has become something of a pop culture touchstone in the past two years, as younger women have begun to view the frail justice as a liberal crusader and women’s rights hero. In 2013, a New York University law student created the “Notorious R.B.G.” Tumblr, likening Ginsburg to rapper the Notorious B.I.G. Since then, a new generation of young female fans have celebrated her scorched-earth dissents, particularly in the Hobby Lobby birth control case and recent voting rights decision Shelby v. Holder. Notorious R.B.G. T-shirts and other merchandise abound. (Ginsburg told Katie Couric last year that she thinks the site is “wonderful.”)
Court watchers have different theories about why Ginsburg appears to have loosened up a bit in public.
“I think that some of the catalyst was her responding to those like me who suggested she should retire,” Chemerinsky said. “That’s carried over to being willing to speak more to the press and more publicly.”
Liberals started to suggest that Ginsburg should retire in President Barack Obama’s first term, to give him ample time to nominate another liberal jurist to replace her. Ginsburg flatly refused. “All I can say is that I am still here and likely to remain for a while,” she told Couric.
Others, including Dahlia Lithwick at Slate, dated the shift to 2005, when Sandra Day O’Connor retired and left Ginsburg as the only woman on the court. Ginsburg began to see the court lean to the right and issue opinions that she believed infringed on women’s rights, such as the ban on partial-birth abortions in 2007.
But perhaps what’s freed the justice is simply time. Ginsburg has survived two bouts of cancer, two broken ribs and the death of a beloved spouse while on the bench. She’s a survivor who loves her job and feels freed by her seniority.
“She’s 80-something years old. What’s going to happen?” Schlanger said. “She doesn’t have any further ambitions except to be the best justice she can be for a while longer.”