The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a recent interview with Katie Couric, Justice Ruth Bader Ginsburg held forth on a range of subjects, including the decision of some NFL players to protest racial injustice in America by kneeling during the national anthem. In the interview, Justice Ginsburg called the protests "dumb and disrespectful," but also noted that (like flag burning) such expression is perfectly legal. "I think it's a terrible thing to do, but I wouldn't lock a person up for doing it."
Apparently it's not enough for a Supreme Court justice to defend the right of individuals to protest injustice. In order to remain a progressive icon, one must also endorse the substance and method of the protest at issue.
Some of you have inquired about a book interview in which I was asked how I felt about Colin Kaepernick and other NFL players who refused to stand for the national anthem. Barely aware of the incident or its purpose, my comments were inappropriately dismissive and harsh. I should have declined to respond.
This is becoming something of a pattern. Justice Ginsburg gave several interviews over the summer in which she made comments about the election and issues that could come before the court. After her comments drew criticism, she apologized.
Justice Ginsburg may have felt the need to apologize because she does not want to be a source of controversy. Unlike her prior comments, however, there was nothing inappropriate about these remarks from a judicial ethics standpoint.
In this most recent interview, Justice Ginsburg expressed a personal opinion about the protests, but said nothing about the underlying questions of racial justice. Her remarks were not about questions relating to partisan politics and did concern a question that could come before the court. To the contrary, her remarks made reference to a related question—whether flag burning is constitutionally protected expression—that is well settled and has been commented upon by other justices without incident.
Justice Scalia, for example, often remarked that he had little sympathy for "sandal-wearing, scruffy-bearded weirdo[s]" who burn flags, but that his views also had no bearing on whether such protests were constitutionally protected. If it was acceptable for Justice Scalia to make such remarks about settled questions of constitutional law, it should be acceptable for Justice Ginsburg as well—unless, of course, the question is not what's appropriate for a Supreme Court justice, but what is appropriate for the Notorious RBG.