Ruth Bader Ginsburg doesn’t want Colin Kaepernick imprisoned for kneeling during the national anthem. But she does think his protest of police violence against African-Americans is dumb, disrespectful, ridiculous, and arrogant.
“Would I arrest them for doing it? No,” Ginsburg told Yahoo News’s Katie Couric, in reference to Kaepernick and other NFL players who had declined to publicly honor the nation’s flag. “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 when it comes to these football players, you may find their actions offensive, but what you’re saying is, it’s within their rights to exercise those actions?” Couric asked (as though Ginsburg’s statement needed clarifying).
“Yes,” Ginsburg replied. “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.”
Ginsburg’s position puts her markedly to the right of mainstream liberal opinion. Typically, liberals who have questioned the players’ tactic have hastened to affirm the legitimacy of their cause. Ginsburg, by contrast, merely affirms their right not be imprisoned for refusing to perform an act of social conformity. The idea that the state should not coerce people into standing whenever the national anthem is played is so uncontroversial, it’s odd that Ginsburg puts so much emphasis on it.
But Ginsburg’s insensitivity to challenges to police authority is reflected in some of her jurisprudence, 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, 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.
Notoriety is the eye of the beholder.