The Volokh Conspiracy
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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.
