In July, Justice Ruth Bader Ginsburg made headlines when she criticized Republican presidential candidate Donald Trump, calling him a “faker” and deeming a Trump presidency unimaginable. Although a few commentators praised Ginsburg for her honesty, even observers who appeared to agree with her assessment of Trump thought it inappropriate for a sitting justice to call out a presidential candidate. Ginsburg herself soon came to that same conclusion, expressing regret for her comments and vowing to be “more circumspect” going forward.
Last week she had to redouble her effort at circumspection. In response to a question from Katie Couric, Ginsburg criticized San Francisco 49ers quarterback Colin Kaepernick for his protesting against police brutality and racial oppression by silently kneeling during the playing of the national anthem before games. Although making clear that Kaepernick cannot and should not be prosecuted for his protest, Ginsburg termed it “dumb” and “disrespectful,” likening it to burning an American flag.
Then, by week’s end, Ginsburg had backtracked again. “Barely aware of the incident or its purpose,” she said in a statement about Kaepernick’s protest released by the Court, “my comments were inappropriately dismissive and harsh. I should have declined to respond.”
Whether Ginsburg’s walking back of her criticism of Kaepernick repairs the damage to her iconic status as the “notorious RBG” remains to be seen. For now, however, it is worth contemplating why her initial criticism of Kaepernick was inappropriate.
In Ginsburg’s Defense
It could be argued that there was in fact nothing wrong with Ginsburg’s criticism of Kaepernick’s exercise of his right to free speech. One could point to a long line of statements by justices drawing a distinction between what’s legal and what’s smart. As her dear departed friend Justice Antonin Scalia used to say: “A lot of stuff that’s stupid is not unconstitutional.”
Similarly, in his 2005 opinion for the Court in Kelo v. City of New London, Justice John Paul Stevens emphasized that even though the city’s exercise of the power of eminent domain was constitutionally valid, “the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public concern.”
Perhaps most directly analogous to Justice Ginsburg’s initial criticism of Kaepernick’s protest was Justice Anthony Kennedy’s concurrence in the 1989 case of Texas v. Johnson. While agreeing with four of his colleagues that the Constitution forbids punishing someone because he burns an American flag as a political statement, Kennedy added that Johnson’s protest was enormously offensive. Significantly, however, Kennedy prefaced that statement with the observation that “except in the rare case,” the Court does “not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision.”
Speaking Ex Cathedra Versus Off the Bench
Justice Kennedy criticized Johnson’s flag burning in the context of a contested case before the Supreme Court. By contrast, Justice Ginsburg criticized Kaepernick’s national anthem protest in an interview. Should that make a difference?
Having joined Justice William Brennan’s majority opinion in the Johnson case, Kennedy was not obligated to write a separate concurrence, but there is hardly anything wrong with writing a concurrence. As noted above, there is a long tradition of judges and justices distinguishing between what is lawful and what is right.
Nor do all of the relevant statements issue from the bench. Especially in recent years, we have seen judges and justices across the ideological spectrum writing books, giving speeches, and more broadly acting as public intellectuals. The Code of Conduct for United States Judges does not apply to Supreme Court justices, but even if it did, Ginsburg would not have violated it by opining on Kaepernick’s protest.
How Extreme Is Kaepernick’s Form of Protest?
Yet even if Ginsburg’s criticism of Kaepernick was within the bounds of professional norms, that does not mean it was appropriate, all things considered, as she herself now recognizes. Recall that Kennedy said in the Johnson case that only in rare circumstances should justices criticize someone for exercising his constitutional rights. That seems especially true when the justice doing the criticizing does so outside the context of a case he or she must decide.
Is Kaepernick’s protest extreme in the way that Kennedy (and at least initially Ginsburg) thought that flag burning is? It is hard to see how.
At least since the Supreme Court’s landmark 1943 ruling in West Virginia State Board of Education v. Barnette, constitutional case law has recognized a right of dissenters to refrain from reciting the Pledge of Allegiance. Students and others who exercise that right either sit or stand silently while others recite the Pledge. Notably, in neither Barnette nor subsequent Pledge cases has anyone who agreed that the right to silent protest exists suggested that such silence is disrespectful. Nor is there any reason to think that Kaepernick’s similarly silent protest of the national anthem disrespects the majority of those assembled in the stadium who wish to sing along or silently assent.
Kaepernick’s silent protest thus looks much more like refusing to participate in compelled speech—as protected by Barnette and other cases—than like flag burning, which makes affirmative use of a revered symbol to communicate a message of dissent.
Indeed, in my view, even flag burning is not necessarily disrespectful of people who revere the flag. One could burn a flag in a disrespectful manner, but it is also possible to burn a flag to symbolize opposition to particular policies that, in the protester’s view, betray ideals that the flag represents. However, even if one thinks that flag burning necessarily connotes disrespect, it does not follow that kneeling quietly during the national anthem connotes similar disrespect.
Kaepernick’s Substantive Views
If Kaepernick’s protest does not warrant being called “dumb” or “disrespectful” in virtue of the manner in which he carries it out, might Justice Ginsburg nevertheless have been justified in criticizing him because of the particular message he espouses? That is possible in theory.
Suppose that a professional football player were a member of the Westboro Baptist Church and silently took a knee during the playing of the national anthem in protest of the fact that the United States tolerates homosexuality. Anyone, including a Supreme Court justice asked a question about such a protest, would be right to call it “dumb” and “disrespectful.”
Yet in the Couric interview Justice Ginsburg did not disagree with the substance of Kaepernick’s views. And for good reason. Kaepernick’s silent protest aims to highlight issues—police brutality and racial bias—that warrant serious attention, as surely Ginsburg agrees.
That is not to say that Justice Ginsburg does or should agree with everything Kaepernick has ever said. For instance, Kaepernick views both Donald Trump and Hillary Clinton as “proven liars” who are “trying to debate who’s less racist.” Based on evidence provided by fact checkers, Ginsburg might understandably disagree (as I disagree) with Kaepernick when he equates Clinton’s routine-for-politicians level of misstatement with Trump’s near-constant mendacity and unbridled racism (not to mention his sexism and xenophobia).
Yet Ginsburg’s initial criticism did not distinguish Kaepernick’s views on the presidential election from his much more widely known views about police brutality and racial oppression in calling his protest “dumb” and “disrespectful.” Nor could she have, given her vow following her Trump comments in July to be more circumspect before making pronouncements about presidential politics.
What Justice Ginsburg said about Colin Kaepernick applies to her own comments. She had a right to criticize him but doing so was “dumb” and “disrespectful” to a professional athlete who, at potentially great risk to his own career, has taken a stand for his principles by taking a knee. Ginsburg made the right call by throwing a penalty flag on herself.