Thursday, July 31, 2014
Justice Ginsburg on the five male Justices' "blind spot" in Hobby Lobby, and the influence of daughters on their fathers
Justice Ginsburg's recent interview with Katie Couric is getting a lot of attention. One Yahoo! write-up focuses entirely on Justice Ginsburg's dissent in Hobby Lobby. The accompanying five-minute clip is worth watching. One of the more interesting exchanges was Justice Ginsburg's expressed belief that the "five male justices" (in the words of Couric's question) had a "blind spot" (Ginsburg's words, repeated by Couric, and affirmed by Ginsburg) in Hobby Lobby. The same five justices also had a blind spot, Justice Ginsburg volunteered, "in Lilly Ledbetter's case." (Transcript of exchange below the jump.)
This kind of identity-based attribution is problematic in its own right. Think about how this might work in reverse. There were parties on both sides of what Justice Ginsburg calls "Lilly Ledbetter's case." Should the other party have been worried that Justice Ginsburg would be partial to Lilly Ledbetter because the two are women? I don't think that would make too much sense (as opposed to worrying about Justice Ginsburg's perception of the merits because of her ideology and jurisprudence). Would it not be offensive to attribute Justice Ginsburg's Ledbetter vote to a "soft spot" for women, in a manner analogous to Justice Ginsburg's attribution of the Hobby Lobby majority's decision to a "blind spot" for women? Of course it would.
Justice Ginsburg's comment on the five male Justices in Hobby Lobby also reveals a couple possible blind spots of her own. One comes from her Supreme-Court-centric view of the issues in the case. Numerous female federal judges have entered injunctive relief of one sort or another for plaintiffs challenging the contraceptives mandate. What explains their votes? Is the reasoning of Justice Samuel Alito and his brethren in the Hobby Lobby majority any better or worse, for example, when prefigured by the reasoning of Judge Diane Sykes (7th Cir.) or by the analysis of Judge Lee Rosenthal (S.D. Tex.)?
Another apparent blind spot emerged in Justice Ginsburg's description of the legal basis for Hobby Lobby. It is easy enough to pass off as a minor slip her characterization of the decision as involving the "constitutional right" of employers to act as Hobby Lobby did. But "it's just a verbal slip" became less likely when Justice Ginsburg went on to say that the majority had incorrectly interpreted the Free Exercise Clause. Does Justice Ginsburg have a blind spot for RFRA and the congressional judgment embodied in that super-statute? That statute, and not the Free Exercise Clause, is the basis for the Hobby Lobby decision.
Having disagreed with the gist of Justice Ginsburg's discussion of Hobby Lobby, I would like to end on a note of partial agreement. As the father of three daughters, although not a federal judge, I am sure Justice Ginsburg is right, as a general matter, that "daughters can change the perceptions of their fathers." I am less certain, though, about her deployment of that assertion in this context. Justice Ginsburg may have been thinking about this recent paper by Adam Glynn and Maya Sen. Their analysis of votes by federal circuit court judges indicates that, in their words, "conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion than judges who have only sons."
As with much empirical research on lower court judges, it is unclear (at best) whether the results can be used to explain the behavior of Supreme Court Justices. But if we're going to go down this road, it may be worth noting that four of the five justices in the Hobby Lobby majority have daughters. Justice Scalia alone has more daughters (four) than all four dissenting justices combined (three). Chief Justice Roberts, Justice Kennedy, and Justice Alito each have one daughter.
Couric: All three women justices were in the minority in the Hobby Lobby decision. Do you believe that the five male justices truly understood the ramifications of their decision?
Ginsburg: I would have to say no. But justices continue to think and can change, so I am ever hopeful that if the Court has a blind spot today, it's eyes will be opened tomorrow.
Couric: But you do in fact feel these five Justices had a bit of a blind spot?
Ginsburg: In Hobby Lobby, yes. Yes I do. The same five had a blind spot, the majority had, in Lilly Ledbetter's case.
Couric: Because they couldn't understand what it was like to be a woman?
Ginsburg: They have wives; they have daughters. By the way, I think daughters can change the perceptions of their fathers.