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Justice Ginsburg Criticizes Lack of Due Process on Campus

In a wide-ranging interview, the "Notorious RBG" suggests colleges campuses are not providing adequate process to the accused.

Justice Ruth Bader Ginsburg recently sat down for an extensive interview with Jeffrey Rosen of the National Constitution Center. The Atlantic posted an edited transcript.

In the interview, Justice GInsburg spoke about a wide-range of issues, including the #MeToo movement and cases she would like to see overturned. In this discussion, her comments about the lack of Due Process on some college campuses are worth attention, particularly her claim that some colleges provide inadequate process to the accused:

Rosen: There is a debate both among women and among men about what sort of behavior should be sanctionable, and one group is saying that it's wrong to lump together violent behavior like Harvey Weinstein with less dramatic forms of sexual misconduct, and others say that all misconduct is wrong and should be sanctioned.

Ginsburg: Well, there are degrees of conduct, yes. But any time a woman is put in a position where she is inferior, subordinate, there should be—she should complain, she should not be afraid.

Rosen: What about due process for the accused?

Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenants of our system, as you know, everyone deserves a fair hearing.

Rosen: Are some of those criticisms of the college codes valid?

Ginsburg: Do I think they are? Yes.

Rosen: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality.

Ginsburg: It's not one or the other. It's both. We have a system of justice where people who are accused get due process, so it's just applying to this field what we have applied generally.

Rosen also asked Justice Ginsburg about dissenting opinions that she hoped would one day become the basis for majority opinions. In reply, she identified Shelby County v. Holder (invalidating Section 5 of the Voting Rights Act) and Stenberg v. Carhart (upholding the federal prohibition on "partial-birth abortion"). She also suggested she would like to see the COurt overturn Maher v. Roe, which upheld a state law limiting the use of Medicaid funds to pay for abortions.

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  • Eidde||

    "one of the basic tenants of our system"

    But apparently the tenancy is month to month, and summary eviction is permitted.

  • bernard11||

    Blame the transcriber, or the Atlantic.

    It was an interview, not a written article by Ginsburg.

  • Eidde||

    Of course I'm happy to blame the Atlantic.

  • DjDiverDan||

    I saw that too, and my immediate reaction was that Justice Ginsburg could not possibly have confused "tenants" with "tenets", it MUST have been really sloppy editing. Once, long, long ago, The Atlantic was considered classy journalism. Now, apparently, it can't even be bothered to hire editors who are familiar with the English language.

  • PoxOnBothYourHouses||

    It's hardly limited to The Atlantic. In recent years I've seen an explosion of typos and grammatical errors in news and magazine articles, in op-eds, and of course in blogs. I'm happy to blame prevailing fashions in education, but it could be we are just getting dumber.

  • Rev. Arthur L. Kirkland||

    Boy, are you guys going to be steamed if you ever see the level of literacy -- random capitalization, shoddy grammar, Tea Party spelling -- exhibited by Pres. Trump and his right-wing followers.

  • bernard11||

    Yes. The problem is widespread.

  • Naaman Brown||

    I have seen similar comic transcripts of radio or tv show interviews.

    I am tempted to believe the interview recording was run through a voice-to-text program and the output received no or poor proofreading.

  • Bob from Ohio||

    "Justice Ginsburg could not possibly have confused "tenants" with "tenets"?

    Why? She is very old.

  • Paul Alan Levy||

    Neither Justice Ginsburg NOR The Atlantic appears to be to blame. The transcript has the correct spelling (at least, it had the transcript correct when I looked at it 5 minutes ago).
    https://www.theatlantic.com/politics/ archive/2018/02/ ruth-bader-ginsburg-opens- up-about-metoo- voting-rights-and-millenials/ 553409

    It appears to have been cut and pasted incorrectly by Jonathan Adler or by whomever he used to perform the cut-and-paste

  • Rev. Arthur L. Kirkland||

    There goes the thread.

  • TwelveInchPianist||

    Or The Atlantic corrected it, post paste.

  • y81||

    It could be Prof. Adler has some misguided spell check. My spell check (I'm a real estate lawyer) is constantly trying to change curtesy (the interest at common law of a husband in his wife's land, which is often mentioned in boilerplate granting clauses) to courtesy (of which most commercial real estate actors have none to grant).

  • David Nieporent||

    And let's not forget Microsoft's insistence on creating a cause of action for bothering turtles -- "tortoise interference" with contract.

  • NToJ||

    Microsoft's spell check is tortuous.

  • Rev. Arthur L. Kirkland||

    As is customary, Justice Ginsburg is on the right side of history. With respect to treatment of claims of abuse, neither whitewashing (the traditional approach) nor railroading (the recent overreaction) reflects sound judgment.

  • Eidde||

    Is she on the right side of history re a constitutional right to have medicaid pay for abortions?

  • Eidde||

    Was she on the same side of history as those people (not Ginsburg herself, of course, what kind of hater would say that?) who had eugenic motivations for supporting abortion?

    "(Maher v. Roe) surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion."

  • Rev. Arthur L. Kirkland||

    She appears to be on the right side of history in sensing that abortions should not be banned, and that they seem extremely unlikely to be criminalized, in America (which is distinguishable from banana republics, religion-driven countries, and other lessers).

  • Eidde||

    She's also saying abortion should be subsidized through Medicaid, and you haven't tried to justify that.

  • Eidde||

    Speaking of religion-driven, have you heard of the Religious Coalition for Reproductive Choice?

    "RCRC as it exists today evolved from an underground network of ministers and rabbis called the Clergy Consultation Service (CCS), formed in 1967, six years before the Roe v. Wade Supreme Court decision legalized abortion in the United States."

    The Clergy Consultation Service provided referrals for abortions, skirting the secular laws against the practice.

  • Rev. Arthur L. Kirkland||

    I see no reasoned argument for treating abortion (or contraception) differently from any other medical procedure. If government funds can be used for repairing a broken wrist, replacing a heart valve, or treating the flu -- whether through employee benefits, a government program, or another conduit -- they should be available for use with respect to abortion.

  • swood1000||

    I see no reasoned argument for treating abortion (or contraception) differently from any other medical procedure. If government funds can be used for repairing a broken wrist, replacing a heart valve, or treating the flu -- whether through employee benefits, a government program, or another conduit -- they should be available for use with respect to abortion.

    "They should be available" is different from "they constitutionally must be made available," which is apparently what Ginsburg thinks. The Court held that Roe v. Wade did not adjudicate a right to have abortions funded by the government, but only to be free from unreasonable official interference with private choice.

    The court said that there was a rational reason for refusing funding for abortions, in that withholding funds rationally furthered the State's legitimate interest in normal childbirth. It's clear that the state does have an interest in maintaining or increasing population and here it furthers that interest without violating anybody's rights.

  • regexp||

    t's clear that the state does have an interest in maintaining or increasing population and here it furthers that interest without violating anybody's rights.

    That line of reasoning didn't work to reject same sex marriage and it won't work to limit the freedoms of women to control their own bodies.

  • swood1000||

    That line of reasoning didn't work to reject same sex marriage and it won't work to limit the freedoms of women to control their own bodies.

    That line of reasoning, since it was not used to limit the freedom of women to have an abortion, only had to supply a rational basis for the legislation.

  • TwelveInchPianist||

    "I see no reasoned argument for treating abortion (or contraception) differently from any other medical procedure"

    Ok. Can a state prevent Medicare funds from being used to fund any other procedure? Can a state prevent government funds from being used for, say, lasik?

  • Bored Lawyer||

    "Can a state prevent Medicare funds from being used to fund any other procedure? Can a state prevent government funds from being used for, say, lasik?"

    Why couldn't it? A state could rationally conclude that Lasik is merely cosmetic surgery -- people have been using glasses to see for many years, and the desire to see w/o glasses is not so compelling that the public purse must be used.

  • FlameCCT||

    However government funds are not allowed for elective procedures. Hate to burst your bubble but none of your examples are elective while abortion, birth control, even sex change operations are all electives.

  • BillyG||

    Should the government have to fund breast enhancement surgery too? Its just as cosmetic as 99% of abortions.

  • y81||

    When you say "lessers," you mean "s**tholes"?

  • JesseAz||

    Idiots who use the term right side of history as their primary form of evidence are still idiots.

  • Rev. Arthur L. Kirkland||

    What do you think of people who believe the tide of American progress, which has moved against the wishes and efforts of conservatives for more than half a century, is going to change course and begin to flatter conservative aspirations?

  • FlameCCT||

    You're off by half a century on Progressivism. Although we understand that you prefer to hide the ugly truths behind Progressive actions in the past.

  • Eidde||

  • DjDiverDan||

    Unfortunately, far too often the "right side of history" is the wrong side of humanity.

  • jdgalt1||

    Whoever transcribes these needs to learn the difference between tenets and tenants.

  • Curly4||

    The colleges and universities of today are a bastion of progressive politics. Due process is only given to those who they want to give it and to anyone else only condemnation. They give freedom of speech also if the speech is what they approve of if not it will not be allowed.

  • Rev. Arthur L. Kirkland||

    The colleges and universities of today are a bastion of progressive politics.

    You are half-right, Curly4.

    Our strongest schools (from Yale to Michigan, and Williams to Carnegie Mellon) are operated in the liberal-libertarian mainstream, but there are still hundreds of conservative-controlled colleges and universities (Biola, Hillsdale, Wheaton, Regent, and the like).

    We don't hear about the right-wing schools as much because they are fourth-tier or unranked, censorship-shackled, nonsense-teaching goober farms that contribute relatively little progress, insight, or achievement to modern America.

    Jeff Baxter's solo is great; Jay Graydon's is even better.

  • JesseAz||

    Liberals are merely using colleges to test the limits of judicial due process. They fully intend to apply this to other areas of the court system. See Obamas rule of banning disabled people from having guns or the desire of liberals to ban anyone on a politically created watch list from obtaining it. Due process creates too many rights and liberals would rather force people to be compelled to act as they desire.

  • Sarcastr0||

    Liberals are merely using colleges to test the limits of judicial due process

    HOW DID YOU GET INTO OUR SECRET MEETINGS!

  • Rev. Arthur L. Kirkland||

    I let him in so we could laugh at him when Alinsky was becoming tiresome.

  • TwelveInchPianist||

    Or see ther recent Department of Labor advice memo saying it's sexual harassment to discuss science at work.

  • Sarcastr0||

    The Google memo isn't exactly science.

  • TwelveInchPianist||

    There are certainly scientists who disagree. But the wider distribution of cognitive traits among men, and the higher level of neurosis among women, which are the statements that the NLRB memo took issue with, are supported by science.

  • Sarcastr0||

    I haven't gotten into this in a decade, but I'm pretty sure the jury is still out on both causality and the objectivity of those metrics.

    But that's neither hear nor there. Just as dropping 'black people are disproportionately criminals' around the office is pretty iffy behavior, so too is 'women are more emotional.' Statistical truth is not a defense to being hostile to an individual.

  • TwelveInchPianist||

    Certainly true. But citing such a statistic like "blacks are more likely to have criminal records" as a possible cause of an under-representation of black people in a job that requires a clean record, and suggesting that maybe we relax the record requirement to attract more black people, certainly ought to be in bounds.

    This is more akin to what Damore did.

    And saying "women are more emotional" is not the same as citing studies based on standard personality traits, as a possible cause for the under-representation of women, and as a basis for suggesting things that might increase diversity. This is also what Damore did.

  • qlangley||

    "that's one of the basic tenants of our system"

    I hope she said "one of the basic tenets of our system".

    "Tenet" is defined as "any opinion, principle, doctrine, dogma, etc., especially one held as true by members of a profession, group, or movement." by dictionary.com.

    A "tenant" is a temporary resident.

  • Brett Bellmore||

    Since the pronuciation is virtually indistinguishable, and she's not an idiot, I think we can be confident that she said "tenet", and the transcription was simply not properly proof read.

  • Rev. Arthur L. Kirkland||

    Why wouldn't someone who reveres rules use proofread?

  • Bob from Ohio||

    " think we can be confident that she said "tenet", "

    Why? Old people often get confused. She is not immune.

  • AmosArch||

    I'll give Ginsburg credit for getting something right for a change even if it is something as elementary as due process. Now if she could say something as simple as 'innocent until proven guilty' without having to be cornered and prodded into it. Baby steps I guess.

  • Mark22||

    I'll give Ginsburg credit for getting something right for a change

    Don't bother. Ginsburg is all about virtue signaling. She'll continue to screw over Americans with her opinions.

  • Bob from Ohio||

    Yeah, easy to say something in an interview. Give her a case, odds are her scruples on this will fade.

  • Sarcastr0||

    Never betray your tribe, regardless of actual facts!

  • Bob from Ohio||

    What "facts"?

    Its a prediction of a future event.

    She would have to actually rule in favor of a "rapist". She would not like to dilute all the usual feminist worship of her. Seems unlikely.

  • Sarcastr0||

    Amos did it right - noted that Ginsberg was right, but that he still doesn't care for her. Then Mark22 called him out for even conceding that someone on the other side could even say anything not awful.

    Isn't that kind of knee jerking exactly what you accuse the Trump derangement crowd of doing?
    ============
    Your 'why not assume it's Ginsberg's screw up because she's old and confused' is also pretty petty.

  • Bob from Ohio||

    I don't assume she is old and confused [though she is very old], I just reject the comments that assume she cannot possibly have made a mistake.

    We don't know if it was her or the Atlantic.

  • Rev. Arthur L. Kirkland||

    Mr. Levy argues persuasively that it was neither.

    But what's a couple of more things Bob from Ohio doesn't know that he doesn't know?

  • FlameCCT||

    Shelby County v. Holder is an easy fix. All Congress has to do is update the data for all 50 States however the Progressives will fight against that occurring because it may not be the same States that are sanctioned.

  • shawn_dude||

    So hurray, one Democrat governor stands up for due process while the president and other leaders in the Republican party are busy setting fire to the country. Exactly how does that do anything to mend a schism that one party, with the help of their Russian cheerleaders, is gleefully working to expand?

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