On Justice Ginsburg's 'Arrogant' Opinion on National Anthem Protest

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

During the Couric interview, Ginsburg nodded to the racial implications of her statement by saying that she would have the same critique of “flag burners,” who are typically associated with white anti-war activists protesting the Vietnam War. She joins many others in this country who fail to recognize the connectivity between pathological patriotism, racism and global imperialism—or hopes that we do. The trauma that the United States inflicts upon black and brown communities is the same trauma that it inflicts upon black and brown countries.


Kaepernick's concession to that same patriotism—by modifying his initial protest from sitting for the national anthem to taking a knee so as not to “distract” from the purpose of his radical act—shows how pervasive this disconnect is and how carefully it has been maintained. As I've written previously, Muhammad Ali spoke out about the sameness of racial violence and warmongering in 1967 when he refused to fight in the Vietnam War. And he was sentenced to prison for not genuflecting at the altar of American exceptionalism. Martin Luther King Jr. said in 1967 about the same war:

I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without first having spoken clearly to the greatest purveyor of violence in the world today: my own government. …There’s something strangely inconsistent about a nation and a press that will praise you when you say, “Be nonviolent toward Jim Clark,” but will curse and damn you when you say, “Be nonviolent toward little brown Vietnamese children.”


In their own way, both men were saying “Burn this s—t down.” There can be no flag-waving and certainly no racist-anthem singing without first reckoning with the fact that the United States government—as an executive branch, a judicial branch, a legislative branch and a crew—remains one of the “greatest purveyors of violence in the world.” To that end, burning the star-spangled banner and choosing not to sing "The Star-Spangled Banner" have always been forms of protest. And as long as militarized police forces occupy black and brown communities, they always will be.

James Baldwin reported from “occupied America” in 1966, and he told us:

Now, what I have said about Harlem is true of Chicago, Detroit, Washington, Boston, Philadelphia, Los Angeles and San Francisco—is true of every Northern city with a large Negro population. And the police are simply the hired enemies of this population. They are present to keep the Negro in his place and to protect white business interests, and they have no other function. They are, moreover—even in a country which makes the very grave error of equating ignorance with simplicity—quite stunningly ignorant; and, since they know that they are hated, they are always afraid. One cannot possibly arrive at a more surefire formula for cruelty.

This is why those pious calls to “respect the law,” always to be heard from prominent citizens each time the ghetto explodes, are so obscene. The law is meant to be my servant and not my master, still less my torturer and my murderer. To respect the law, in the context in which the American Negro finds himself, is simply to surrender his self-respect.


This is why Ginsburg's allegiance to American symbolism in the face of grave American injustice—and the unwritten law that we should respect it more than life itself—is so obscene. The same San Francisco Police Department that existed in Baldwin’s America is the same one that exists in Kaepernick’s America. The same police forces that were killing black people in 1966 are killing black people today.

To reappropriate the words of another liberal with divergent personal and public views, we can talk about how these uniformed superpredators ended up that way, but first we have to bring them to heel.


Ginsburg has one job, and she has executed that job well in many instances over many years, but no one is above critique. The expectation of full and unwavering commitment to black lives is not "straitjacket thinking"; nor is it a naive demand for ideological purity, as some liberals condescendingly claim. If Ginsburg can "regret" speaking negatively about a racist, misogynist fascist like Donald Trump, and vow to be more "circumspect" in the future, then certainly that same level of respect should apply to black people fighting for their lives.

Ginsburg's offensive statements about the national anthem protests prove that beneficiaries of white supremacy must always be treated with caution, but this does not solely apply to white people. People of color who want access to (white) power must always be treated with caution. People who don’t see the incestuous relationship between fraudulent patriotism and systemic racism must be treated with caution.


With or without Ginsburg's personal support, the Movement for Black Lives will not be silenced; it will not be censured; it will not behave in a manner that she finds appropriate. Because this is a movement, from street to stadium, that understands we have nothing to lose but our chains—and they can’t kill us all.

Make no mistake; the United States is fracturing beneath the weight of its own myth, and no song-singing or flag-waving can prevent it. And Ginsburg, from her pedestal on the bench, may one day soon have to ask herself (again) what many people are wondering of her now:

When that day comes, which America will she serve?

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