The Notorious RBG on Colin Kaepernick's 'dumb and disrespectful' anthem protest

|The Volokh Conspiracy |

Supreme Court Justice Ruth Bader Ginsburg, a.k.a. the Notorious RBG, is something of a "celebrity justice" who makes eyebrow-raising comments with some regularity. Over the summer she gave several interviews in which she commented on the presidential election and Donald Trump. Her comments stoked controversy (and could obligate recusal in an election case, should one arise). Eventually, she expressed regret for her comments.

Ginsburg is back with another interview, this one with Katie Couric. She discusses her career, her book, the Garland nomination and Colin Kaepernick.

When asked by Couric how she feels about San Francisco 49ers quarterback Colin Kaepernick, and [other] athletes, refusing to stand for the anthem, Ginsburg replied, "I think it's really dumb of them."

"Would I arrest them for doing it? No," Ginsburg elaborated. "I think it's dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it's a terrible thing to do, but I wouldn't lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act."

Couric then asked, "But when it comes to these football players, you may find their actions offensive, but what you're saying is, it's within their rights to exercise those actions?"

"Yes," said Ginsburg. "If they want to be stupid, there's no law that should be preventive. If they want to be arrogant, there's no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that."

While many may find these comments eminently sensible, some progressive writers have decided that these comments show Ginsburg doesn't really deserve her "notorious" moniker.

Overall, Ginsburg was more restrained than she had been in her summer interviews. For instance, when asked about Trump's proposal to prevent Muslims from entering the country, Ginsburg said she could not comment on that, as this sort of issue could potentially come before the court. She also refused to comment further on Trump's qualifications for office.

Couric also asked Ginsburg about the Garland nomination. Whereas Ginsburg previously suggested that the Senate was violating a constitutional obligation by not acting on the nomination, this time she was more circumspect, noting the Senate has the "authority" to act this way, even if (in her view) it is being irresponsible. Ginsburg said: "I don't know of another instance where the Senate has said simply, 'We won't hold a hearing.' But as I say, it's the Senate's prerogative." Ginsburg is correct on both points. As I discuss in this brief paper, the Senate has no constitutional obligation to act on judicial nominations (though it should).