The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ginsburg went on to say that such protests show a 'contempt for a government that has made it possible for their parents and grandparents to live a decent life.'
She said: 'Which they probably could not have lived in the places they came from…as they became older they realize that this was youthful folly. And that's why education is important.'
To protect RBG, Couric simply removed the statements. Why? Couric explained that Ginsburg was "elderly and probably didn't fully understand the question."
I found this explanation wholly unpersuasive. I wrote:
Ginsburg was sharp as a tack. Until the end, she was one of the most aggressive questioners on the Court. Ginsburg's intellect towers over Couric.
Now, Justice Ginsburg's personal trainer, Bryant Johnson, has echoed Couric's explanation: RBG simply didn't know!
I was Justice Ginsburg's trainer for over twenty years, and was lucky to have many conversations with her during that time. When I heard her statement to Couric about the NFL players, I knew that she was not operating with all of the facts. The Justice was engrossed in the law, the opera, her family, and her workouts. But she often missed news on popular culture.
I'm sorry. I find this excuse far too convenient. Ginsburg routinely commented on topics of public concern, including every jot and tittle of the 2016 presidential race. Ginsburg routinely referenced public opinion on same-sex marriage in the lead-up to Obergefell. Do we really think she was unaware of one of the most hot-button cultural issues of that time? Did she not listen to NPR or watch PBS or read a newspaper? Nothing?
Bryant explains he had a conversation with Ginsburg about the situation:
We had a detailed discussion during a workout where I explained why athletes were taking a knee during the national anthem. I explained to the Justice that Colin Kaepernick was not protesting the country but protesting racial injustice. I also informed her that Colin's choice to kneel was at the suggestion of a veteran that told him that it would be perceived as less disrespectful and be a sign of respect if you kneel with your teammates instead of sitting on the bench by yourself.
A jurist can only respond to the facts in front of them, but when new information comes to light, their opinion can change—as it did for Justice Ginsburg. During our conversation, the Justice responded that she "didn't know the whole story" before she made her statement to Couric, and "should not have answered that question."
Ginsburg didn't apologize to Bryant, or in her public statement. Saying "I didn't know the whole story" is a cop-out. She knew enough to comment, but should have kept her mouth shut.
Johnson should have let this matter go.