Did Ruth Bader Ginsburg Just Disqualify Herself from Hearing the Texas Abortion Clinic Case?


Credit: White House / Flickr.com

The latest issue of The New Republic features a long, fascinating interview with Supreme Court Justice Ruth Bader Ginsburg. Among other things, the octogenarian justice denounces the various liberal pundits who keep calling on her to retire, attacks Citizens United as the "one [current] decision I would overrule," and even gets a nice little jab in at her former colleague John Paul Stevens ("He was always fair in assigning dissents: He kept most of them himself"). But the most interesting part of the interview occurs when the talk turns to abortion. Here's the relevant exchange with interviewer Jeffrey Rosen:

JR: And if Roe [v. Wade] were overturned, how bad would the consequences be?

RBG: It would be bad for non-affluent women. If we imagine the worst-case scenario, with Roe v. Wade overruled, there would remain many states that would not go back to the way it once was. What that means is any woman who has the wherewithal to travel, to take a plane, to take a train to a state that provides access to abortion, that woman will never have a problem. It doesn't matter what Congress or the state legislatures do, there will be other states that provide this facility, and women will have access to it if they can pay for it. Women who can't pay are the only women who would be affected.

JR: So how can advocates make sure that poor women's access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business.

The Texas legislation to which Ginsburg refers is a 2013 statute known as H.B. 2. That law placed various restrictions on abortion access throughout the state, including requiring all physicians who perform or induce abortions to have admitting privileges at a hospital no more than 30 miles away from the clinic where the abortion occurs. According to Planned Parenthood of Greater Texas Surgical Health Services, which filed suit against the law, H.B. 2 serves no legitimate health or safety rationale and is instead just a shadowy way for the state to harass and eliminate abortion providers. In March 2014, the U.S. Court of Appeals for the 5th Circuit took the opposite view, upholding the provision as a constitutionally permissible health regulation.

So what's the big deal with Ginsburg's comment? As law professor Josh Blackman observes, "What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other…. It seems that Justice Ginsburg has made up her mind about this law. It is not a health measure, but a law to put clinics out of business."

To say the least, sitting judges are supposed to refrain from stating how they will vote on a specific case that is likely to come before them in the near future. If this dispute does finally reach SCOTUS, don't be surprised when the state of Texas demands Ginsburg's recusal.

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  1. They can demand all they want. I see no conflict that would require recusal.

    1. Everyone already knows how Ruthie would vote on that case anyway. This is just stating the obvious.

  2. And Ginsburg will recuse herself just like Kagan did from the Obamacare case.

    1. Yeah, I thought we were done pretending that laws applied to the ruling class.

    2. Yeah, just like Thomas, Scalia and others who accept favors from the Koch brothers and plan political moves with them – shouldn’t rule on all the Kochsucking stuff…

      1. What in the world is coke-sucking stuff? They shouldn’t rule on drug cases?

        1. Koch Sucking = what goes on here and what Scott Walker, Scalia, Thomas, thousands of paid “libertarian” bloggers and comments have in common….

          1. I just don’t know what it means to suck coke. I’m asking.

          2. Where can I claim my check for having rational beliefs?

      2. Oh good, Craig is off his meds again.

  3. Hypocrite is gonna hypocrite:

    1. It’s called the “Sharing” economy.

      What’s mine, is mine. What’s your’s, we share.

    2. I’m fine with not being paid because of the circumstances surrounding the event ? I essentially volunteered by applying. I have a chance to work with someone whom I respect and who’s highly accomplished, which is rare for someone at my level. It’ll be a unique addition to my credits.

      If she were a small winery in California, then the state would put her out of business.

    3. Price per ticket: $38 (or $900, from scalpers)

      Who the fuck would pay $900 for her?

      1. Who the fuck would pay 900 cents for her?

    4. That’s plenty, and on top of that, I get to tell jokes aimed at Christian Mingle and the Church of Latter Day Saints in a chapel full of Austin women. Heaven on Earth. I don’t really understand why people are getting upset about it on my behalf.”

      We’re not, babydoll, we’re not. Please, go, go.

  4. Recusal is so 19th century, like civil liberties and limited government. Please leave with your absurd, primitive beliefs.

    1. Yes, how quaint.

      1. It’s like slavery for justices.

  5. H.B. 2 serves no legitimate health or safety rationale and is instead just a shadowy way for the state to harass and eliminate abortion providers.

    One minor correction, s’il vous pla?t: there is no such a thing as an abortion provider. You don’t provide abortions. You perpetrate them.

  6. If an old hag like her waxing poetic about the need to make sure the undesirables don’t have any children doesn’t creep you out, nothing will.

  7. And Reason has this article….why? Is Reason on the side of closing down women’s access to such places? hy not state a case?

    1. Are you serial?

      The issue here has to do with the basic process analysis and ethics of our Supreme Court justices

      To answer the question posed in the article title…

      Almost certainly yes

      1. Oh, I agree – once they appointed Bush and did the Citizens united thing….it’s pretty much all over.

        Attending the Kochs political confabs is off the chart……

        “The group, Common Cause, filed a petition with the Justice Department on Wednesday asking it to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups.

        Common Cause also cited the role of Mr. Thomas’s wife, Virginia Thomas, in forming a conservative political group opposed to the Obama administration as grounds for his disqualification.”

        Basic process analysis? Well, I’ll let you argue that as long as you can point me to the Reason articles which talk about the “cons” on the SCOTUS disqualifying themselves.

        Heck, as we speak Scalia is taking money (hospitality) from Cheney while Cheney’s case (one of them) is in litigation!

        On the other hand, if you want to claim Reason is just one-sided and doesn’t give a shit about “process”, I’ll accept that also. But you can’t have it both ways.

        1. And what in your mind does this have to do with the above case. Ginsburg has admitted to deciding on a case she has not seen. Scalia is merely assumed by YOU to have decided on a case…. see the difference?

          This is like saying a judge should recuse himself from a murder trial because he’s come out against murder. Different than coming out and judging a specific case without seeing evidence.

          1. Actually, it’s more like saying that a Justice who clearly said they were against negro segregation and voter disenfranchisement…..should be excused from cases dealing with such ONLY because they mentioned the offending states who seem to believe in such practices.

            Since Roe v Wade is law and constitutional, I see nothing wrong with a Justice saying that…it’s a standard that should be met.

            1. Your main problem is that it’s so hard for you to differentiate between the voices in your head and things that have, you know, actually happened. The meds will help if you stay on them.

            2. Laws regulating murder and the like fall under the states’ police power. I don’t see how Roe v Wade could possibly be constitutional.

        2. Oh, I agree – once they appointed Bush and did the Citizens united thing….it’s pretty much all over.

          The idea that the Sierra Club and the League of Women Voters should be able to speak on political issues, according to you, means the end of democracy? You want to limit political speech to big media corporations and incumbent politicians instead? Are you f*cking serious?

          1. “The idea that the Sierra Club and the League of Women Voters should be able to speak on political issues”

            YES, these are the exact same as a secretive private corporations which uses hundreds of “astroturf” efforts – which deny or cover up their sources of funding – to inject filth into the political process….

    2. The point of the article is not whether that law should stand or fall. It is that the Liberal Establishment has (long) ceased even PRETENDING to play buy the rules. If that doesn’t make you extremely nervous I must assume that you;

      A) Belong to the Liberal Establishment and believe they will always rule.

      B) Are favored by the Liberal Establishment and believe this will always be true.


      C) Are as dumb as a post.

      1. I dispute the “Or”.

      2. Pretending to play by the rules? Heck, Koch’s make their own laws. Money talks, BS walks.

        Let’s not pretend the gubment of the USA is currently about fair play and one person=one vote and “by the rules”. It’s not.

        Yes, it’s now a matter of power and money and we libs are gonna fight that way because we can’t bring a knife to a gun fight. But make no mistake about it – libs would prefer one person-one vote, but it ain’t gonna work with the Kochsuckers, etc.

        1. If you won’t fight to make your own side play by the rules, you don’t get to whine when somebody else doesn’t.

          This country desperately needs to return to the Rule of Law – NOT Lawr ‘n Owada, but the actual government following the actual rules as written down. Yes, there are rules that need to be fixed or repealed, but pretending it’s ok to bend them when you are in power merely pushes matters further toward an Imperial State.

          And don’t start with me about “we are already there”. People who protest and mock the State may get pounded, but they seldom vanish between two days. Don’t start fighting for a limited State and that happy condition is going to change.

          If you are not a Socialist/Communist/Statist you need to be fighting to get the Liberal establishment back from that seductive but ultimately disastrous fantasy. The Tea Party is trying (with missteps and fits and starts, but what do you expect from a Populist movement?) to do the same thing with the Conservative establishment.

          If you are a Socialist/Communist/Statist, then go right ahead wishing more punitive and regulatory power to the State. But you might want to examine the historical record of such governments. It stretches back to the pre-history of the Imperial Chinese system, and there are plenty of recent examples that claimed to be Socialist/Liberal. They all purge Intellectuals in job lots. They like compliant peasants.

          I don’t think you’d like to be a peasant. I know I wouldn’t.

          1. “The Tea Party is trying (with missteps and fits and starts, but what do you expect from a Populist movement?) to do the same thing with the Conservative establishment”

            The Tea Party is a construct of the GOP and the Koch’s – a populist construct based largely on “white anger” and racism – and is popular among low information voters. It’s not taking the GOP anywhere except more extreme, which is bad for the GOP. It’s not conservative – it’s reactionary and populist.

            As far as my politics, they are in the middle. I am fiscally conservative, anti-war and socially liberal. I certainly don’t vote for tax increases, but I’m not going to vote for a decrease unless I see the actual numbers and it adds up.

            1. Another unprincipled, utilitarian moderate, such nuance…

    3. Whether women’s access to abortions is a desirable policy is irrelevant; SCOTUS isn’t supposed to decide on the desirability of policies, it is supposed to decide on their constitutionality. Ginsburg’s statements go beyond merely being influenced by political beliefs (which all supreme court justices are) into deliberately misusing her position for political purposes.

      1. For a progressive desirability of policy is DIRECTLY correlated to its constitutionality.

        Especially with the living Constitution and over time the more desirable something becomes – that is when you get emanations and penumbras that make it a constitutional necessity

        I am not being the least bit sarcastic here. This really is what Progressives believe.

        Spend about 10 minutes on a progressive website where they will rail on liberals for Pete’s sake for having too much fealty to individual rights and constitutional precedent

  8. Ah, looks like millions of more Americans are going to know about the funders of this site….:

    1. They posted a list of the people who fund the site last year during fund raising. Unlike “democratic” alliance, there aren’t too many secrets around here. Decaf…just saying…

  9. The fun never stops!

    “Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana, just three weeks after the court agreed to take up the vice president’s appeal in lawsuits over his handling of the administration’s energy task force, the Los Angeles Times says in its Saturday editions.”

    1. Kocks are the devil yet Buffett makes $2 Billion dollars a year in revenue hauling oil on his railroads for $30 a barrel that would cost $9 a barrel on the Keystone Pipeline.

      Yawn !

  10. I find that a lot of Reason commenters are simply social conservatives that like the label “Libertarian”, but hate all icky parts of freedom.

    Articles like this really show that.

    1. I am not sure I grok this but my viewpoint is that they are mostly ideologues and perfectly willing to abandon principles when the results are good

      In fact, as a rule, they avoid process analysis in ideologically troublesome cases but embrace it when the meta narrative supports it and the subject is sympathetic

      Iow, they are no different from hardcore progressives, religious fundamentalists etc

      1. Oh, Officer Dunphy, you’re just grumpy because we don’t consider you the dashing hero you imagine yourself to be.

        1. It ain’t imagination Honey, it’s realization


    2. Puppetry…pretty much only works when others can’t see you pretending to be someone else…

      1. And really he should try and do better than space the comments 10 minutes apart. At the least he should have waited an hour to respond to the sock puppet.

        1. I really cant believe you are this stupid but if you honestly think I’m using sock puppets more power to you it’s just not the case


      2. Who am I supposedly pretending to be? Perhaps your offended by my comment, and since I can’t reasonably prove who I am, you seek to make baseless comments.

    3. In short, as goes the sayings, they are:
      “Republican that smoke dope” (this is where silly debates and stuff like “process analysis come in”

      “Republicans that like to have lots of sex outside of marriage”

      Or, we could just use the word “selfish GOP-leaning hypocrites”, which pretty much covers it.

      1. For someone who despises Libertarians, you sure spend alot of time here. Can you not find find something more productive to do…like kochsucking?

    4. I find that a lot of Reason commenters are simply social conservatives that like the label “Libertarian”, but hate all icky parts of freedom.

      Murder is not an issue of social conservatism. Libertarians who acknowledge that their rights end where another’s begins can easily figure out that killing a human is not an issue of freedom.

  11. My buddy’s mother makes $83 /hour on the computer . She has been fired from work for 7 months but last month her income was $16557 just working on the computer for a few hours.
    you can check here ———- http://www.jobsfish.com

  12. “Frankly I had thought that at the time [that abortion was legalised], there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” – RBG

  13. What that means is any woman who has the wherewithal to travel, to take a plane, to take a train to a state that provides access to abortion, that woman will never have a problem.

    Only affluent women will be able to murder babies? That’s not fair! Infanticide should not just be for the 1%! Do we really want to live in a society where only the richest 1% of women can murder an unborn child? That’s not what Merica is all about.

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