On Justice Ginsburg’s ‘Arrogant’ Opinion on National Anthem Protest

Ginsburg’s allegiance to American symbolism in the face of American injustice—and the unwritten law that we should respect it more than life itself—is obscene. But that’s her business—as long as she keeps it off the bench.

Justice Ruth Bader Ginsburg in 2010
Justice Ruth Bader Ginsburg in 2010 Kevork Djansezian/Getty Images

Updated Friday, Oct. 14, 4:50 p.m. EDT: Justice Ginsburg did not respond to The Root‘s interview request to discuss her comments about Kaepernick and the national anthem protest, but she released the following statement:

“Some of you have inquired about a book interview in which I was asked how I felt about Colin Kaepernick and other NFL players who refused to stand for the national anthem,” said Ginsburg in a statement released by the court. “Barely aware of the incident or its purpose, my comments were inappropriately dismissive and harsh. I should have declined to respond.”


In a wide-ranging interview with Katie Couric, Supreme Court Justice Ruth Bader Ginsburg, 83, weighed in on the massive protest against police brutality—and, more broadly, systemic racism and oppression—that has swept sports arenas across the country.

Sparked by San Francisco 49ers quarterback Colin Kaepernick’s decision to take a knee during the singing of “The Star-Spangled Banner,” the protest has not only raised awareness about the state-sanctioned and perpetuated violence that occurs daily in occupied black and Latinx communities. It has also shined a light on the violent expectation that patriotic symbolism should supersede the material conditions that reinforce the racist notion that black bodies are disposable.

When Couric asked Ginsburg her feelings about the protest, this was the liberal judge’s response:

I think it’s really dumb of them. Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag-burning. I think it’s a terrible thing to do. But I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. But it’s dangerous to arrest people for conduct that doesn’t jeopardize the health or well-being of other people. It’s a symbol they’re engaged in.

If they want to be stupid, there’s no law that should be preventive. If they want to be arrogant, there’s no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.

The reaction to Ginsburg’s statement ranged from agreement and indifference to disappointment—something that Kaepernick expressed himself—to shock and fury. After all, some people have affectionately nicknamed Ginsburg the “Notorious RBG.” Because of this, and her left-of-center record on the court, they mistakenly believed that she would know better—that she would be better

But that’s not how it works; that’s not how any of this works.

Let’s make it plain: Colin Kaepernick and those who followed his lead are not the “disrespectful” and “arrogant” ones here. The “disrespectful” and “arrogant” one is the so-called liberal justice who is apparently more offended by peaceful protests than the systemic violence to which those protests respond. Ginsburg may insist that she “wouldn’t lock a person up” for exercising his or her freedom of expression, but that should be a given, not a favor.

There are other ways to silence protest, and as the Movement for Black Lives continues to grow, criminalization and repression have become clear and present dangers. In Las Vegas just last month, District Judge Douglas Herndon “requested” that attorney Erika Ballou remove her Black Lives Matter button while in court because it fell outside the realm of free speech. His move was nothing more than hatred and fear cloaked in proclaimed political correctness—and that is as dangerous as any cell block.

I have respect for Ginsburg—more specifically, for her commitment to women’s and civil rights issues on the Supreme Court—and she has every right to her personal opinion. Conversely, those disturbed by that opinion and how it may influence the court have every right to respond in kind, despite some people’s apparent need to silence critics.

Case in point: Writing for the Daily Beast, Lizzie Crocker said, “That people are shocked about [Ginsburg’s] Colin Kaepernick comments reflects their straitjacket thinking on this issue—and their expectations of her to be a liberal automaton.”

That reductive logic, and similar ridiculously off-base points that Crocker made throughout her piece, not only delegitimizes the core reasons behind Kaepernick’s protest but also deceptively positions liberalism as the moral authority on racism and shows a clear lack of understanding of how white supremacy functions. Admittedly, I was not shocked by Ginsburg’s statements. This is a woman who was “best buddies” with late Supreme Court Justice Antonin Scalia, a man who was nothing more than a racist demagogue who used his position of power to attack marginalized and oppressed groups from the bench.

While many liberals seem to believe that the relationship proved that friendships can thrive despite huge differences in ideologies, it can more accurately be compared with being friends with the Klansman next door because he makes you laugh. It was a friendship that was the embodiment of this nation’s double consciousness and one that did—and should—raise legitimate questions about Ginsburg’s personal and racial politics.

Ginsburg prides herself on being a lover of the Constitution—along with her “treasured friend” Scalia. And that’s really the root issue here: The dehumanization of black people is built into that Constitution, upheld by its gatekeepers and rarely penalized by law, and Ginsburg has, at times, been complicit in that. Gone mostly unnoticed in the glare of her Kaepernick-protest statements were Ginsburg’s words on policing at large. With a straight face, she perpetuated the idea that the relationship between police and communities is balanced and that we just need to work together for change—a key liberal strategy that requires a continued inequitable distribution of labor. We cannot “work together” with a militarized government entity when there is a clear and abusive imbalance of power, and Ginsburg has at times used her power to side with police.

As David Kinder has noted in Current Affairs:

In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable. In Taylor v. Barkes (pdf), the court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures. In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop. Ginsburg joined the opinion in every case.

In fact, she has gone so far as to join the conservatives on criminal justice, even when all of her fellow liberals have sided with a criminal defendant. In Samson v. California, the court decided the issue of whether police could conduct warrantless searches of parolees merely because they were on parole. Instead of joining the liberal dissenters, Ginsburg signed onto Clarence Thomas’s majority opinion in favor of the police.

That goes far beyond her “arrogant” personal opinion.