Ruth Bader Ginsburg’s Colin Kaepernick criticism is a reminder that even liberals can get too comfortable

Imperfect liberalism.
Imperfect liberalism.
Image: Reuters/Joshua Roberts/File Photo
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“It’s dumb and disrespectful,” US Supreme Court justice Ruth Bader Ginsburg said recently about Colin Kaepernick’s refusal to stand during the national anthem. Speaking with journalist Katie Couric, Ginsburg added, “I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do.”

Many fans of the venerable, liberal jurist have been taken aback by Ginsburg’s comments. Ginsburg has been a champion of women’s rights as well as racial-justice issues. She penned a notably impassioned dissent after the court majority gutted the Voting Rights Act in 2013, and she’s been a strong proponent of the constitutionality of affirmative action programs in higher education. Based on her stances on the court, you would think she’d have some sympathy for an entirely nonviolent, even reverent effort to protest against the rampant racism of the justice system.

But after reading Ginsburg’s new collection of writings, My Own Words, her statements are a bit less surprising. From her 1946 eighth grade essay on the virtues of the United Nations right through to her 2016 tribute to her good friend, deceased conservative justice Antonin Scalia, one overwhelming truth emerges: Ginsburg is no radical.

Something of a liberal celebrity, Ginsburg’s popularity has been helped along by the popular meme—now also a book—that refers to Ginsburg as the Notorious RBG. The moniker, inspired by rapper Biggie Smalls, is funny because it’s so incongruous. Ginsburg in real life isn’t a gangsta for justice; she’s the embodiment of respectability politics.

Over and over in her book, Ginsburg emphasizes the importance of moderation, respect, and incremental change. “The Court really does prize collegiality,” she insists. She is proud of her close friendship with Scalia—a man who, whatever his virtues in person, was an open and determined bigot on the bench. She approvingly quotes former justice Louis Bradeis’s dictum, “It is more important that the applicable rule of law be settled than that it be settled right.” This is a motto that prioritizes stability over justice, and encourages dissenters on the bench to sign on to majority opinions in all but the most extreme cases.

Ginsburg even reiterates the conservative shibboleth that Roe v. Wade moved too far, too fast. “Measured motions seem to me right, in the main, for constitutional as well as common law adjudications,” she cautions. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” In other words, go slow, be careful, don’t offend, swallow objections, and trust the system to get things done eventually. Ginsburg believes that the government works, if you let it—which is why, presumably, she finds showing disrespect for the national anthem so distasteful. Though, in a typical move towards compromise, she assures protestors that she doesn’t want to put them in jail.

Ginsburg, in short, is a solid, center-left, work-from-within-the-system liberal. This doesn’t make her a bad judge, nor does it take away from her legal legacy. Indeed, while solid, center-left, work-within-the-system white women liberals have gotten a certain amount of flak this election season, Ginsburg’s career makes perhaps the strongest possible case for their virtues. Her incremental, strategic, flatter-the-opposition approach has helped push through substantial advances over the course of her judicial career.

To review, in 1970, she took on the case of Charles E. Moritz, an editor who was denied a tax deduction for caring for his mother, because such deductions were reserved for women. Fighting for male rights enabled her to establish a precedent against gender discrimination, which in turn ended up benefitting many women. Her even-handed, collegial approach also got her onto the high court. In the book, Ginsburg fondly recalls that when Bill Clinton asked Scalia who he would most like to serve with, Ginsburg’s name was the one that the conservative jurist suggested first.

But if Ginsburg’s career is a blueprint for the liberal establishment, her comments about Kaepernick are a reminder that a love for the system can have its downsides. Collegiality can quickly slide into a belief that your friends in power have more of a right to consideration and kindness than outsiders who raise their voices—because they rightfully fear that you won’t hear them otherwise.

Ginsburg’s assertion that Kaepernick is rude and disrespectful also echoes the usual center-left PC panic, in which the suggestion that professors might warn students about sensitive content is treated as an assault on fundamental freedoms. These center-lefters also believe that free-speech acts of college protest, signing petitions, or canceling plays are actually terrifying threats to speech itself.

As a nonviolent protester named Martin Luther King Jr. once said, “You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals with effects and does not grapple with underlying causes.” Shouldn’t a Supreme Court judge be more worried about a judicial system that murders black people with impunity than with the perceived slight of kneeling when a song is played?

Ginsburg has certainly shown that she is worried about racism in the judicial system—she is just more comfortable addressing it through established, respectful channels. Those channels can be effective, and anyone who cares about social justice has to be thankful that Ginsburg is so adept at using them. But establishment liberals like Ginsburg should be willing to acknowledge the limits of their incrementalism and support folks who protest in sometimes uncollegial ways precisely because they have no access to the chambers of power.