Commentary Law and Policy

Ruth Bader Ginsburg Shows Why White Feminists Must Do Better

Jessica Mason Pieklo

I wish I could dismiss Ginsburg's comments as a one-off. But I think they reflect a truth progressive white feminists need to deal with: Far too often, race isn’t centered in our political and cultural analysis, even if we believe it to be.

UPDATE: The U.S. Supreme Court released a statement from Justice Ruth Bader Ginsburg on Friday that read, “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. Barely aware of the incident or its purpose, my comments were inappropriately dismissive and harsh. I should have declined to respond.”

San Francisco 49ers quarterback Colin Kaepernick and other athletes around the country have knelt during the national anthem for the last few months, both as a way to protest state violence against people of color and show support for others doing the same. On Monday, U.S. Supreme Court Justice Ruth Bader Ginsburg became the latest public figure to weigh in on the actions—and her remarks were both disappointing and telling.

In an interview with Katie Couric while promoting My Own Words, a newly released collection of Ginsburg’s writings over the course of her career, the justice said:

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.

Couric then asked, “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?”

“Yes,” said Ginsburg. “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.”

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In an August interview with the National Football League, Kaepernick explained his protest: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

“Stupid.” “Arrogant.” “Dumb.” These are not the words Ginsburg, who has become a sort of feminist icon, should toss around recklessly when discussing Kaepernick’s protest and its larger message of support for the Black Lives Matter movement. And these comments weren’t just careless. They also reflect a tension that persists in white self-identified “progressive” spaces, specifically white progressive legal spaces, around race and the nature of political speech, including the courts.

Ginsburg said she didn’t want to limit Kaepernick’s political speech; she said it was political speech without any value. But those are not ideas that can be easily disentangled from one another. Legal restrictions on political speech reflect values and judgments, and are thus, by their nature, extensions of personal bias and belief. By insisting that her private judgment of Kaepernick’s political speech wouldn’t translate into a legal judgment on that speech, Ginsburg falls into a trap other self-identified progressives often do—erasing structural inequality by promoting First Amendment intellectual purity.

This summer I attended a conference full of progressive legal academics and litigators: exactly the sort of space where the complicated legal issues of power, race, and political speech should be hashed out. But during a panel on how, if, and whether universities can regulate student speech—in this case in the form of creating or forbidding “safe spaces” on campuses—something very different happened. The panel focused largely on the Black Lives Matter protests at the University of Missouri and the backlash directed at activists and people of color who insisted their humanity and personal safety mattered as much as another student’s free-speech right to hang a noose on campus.

But instead of actually wrestling with these issues, the white panelists spent their time talking about the “slippery slopes”: of regulating student speech, of how the First Amendment is about forcing listeners to endure speech we may not agree with; of the inherit right of any speaker to—within “reason”—speak their political truth.

It was the only panelist of color, Payton Headthe former president of the students’ association at the University of Missouri who was directly involved in the University of Missouri protests and the backlash that followed—who asked why there was an intellectual debate at all. Head asked why university officials were willing to tolerate, and indeed felt compelled to defend, hate speech on campus, when the students of color that speech was directed toward very rightly feared for their their safety and well-being on campus. The other panelists expressed sympathy for Head and the racism he experienced on campus, but none of them suggested there was anything the university could do about it without trampling on the First Amendment rights of those students hurling slurs.

Needless to say, the panel was disappointing, not least because it suggested some of the brightest First Amendment scholars in the country were not able to hold multiple ideas of speech and power together at once. We do need to be cautious when we allow institutions, whether public or private, to put limits on what individuals can and cannot say, especially when the speech at issue is political.

It is also true that we have to factor in the ways in which structural inequality affects who gets to speak, and what they get to say.

White progressives seem to have no problem grasping this context with regard to the idea of money as political speech in the form of campaign contributions. An entire movement within progressive politics centers on the idea of reversing Citizens United v. FEC, the Supreme Court decision that ruled limits on campaign donations, and requirements that those donors be clearly identifiable, violated First Amendment speech protections. Progressives have rightly criticized this decision as one that insulates the politically powerful and drowns out contrarian political viewpoints by simply burying them in political contributions: the metaphorical “shouting over” your opponent, but this time in dollars. Progressives have also noted that Citizens United effectively prohibits some people from entering the political conversation at all, because they don’t have the money. Under First Amendment logic, this means those with less resources automatically start at a disadvantage in speaking in certain political spaces—in the case of Citizens United, electoral ones.

Yet white progressives often overlook that same disadvantage when it comes to racism’s effect on speech—such as the racialized backlash Kaepernick is facing for exercising his First Amendment right. I wish I could dismiss Ginsburg’s comments as a one-off. But I think they reflect a truth progressive white feminists need to deal with: Far too often, race isn’t centered in our political and cultural analysis, even if we believe it to be.

Take, for instance, Utah v. Strieff, a case this last Supreme Court term involving unconstitutional police stops and racial profiling. In Strieff, the male justices all sided with law enforcement, effectively looking the other way on the reality of racial profiling, even as protests erupted around the country in response to the extrajudicial killing of people of color by law enforcement.

It was the women justices who dissented. But only Justice Sonia Sotomayor addressed race in the case. Sotomayor—a former New York prosecutor—masterfully picked apart the legal reasoning put forward by the majority in upholding the racially biased police stop from the start. That part of the opinion Justice Ginsburg joined.

But it was the final part of Sotomayor’s dissent, where she offered up a manifesto of support for Black Lives Matter and a searing indictment of those who deny the very real racial bias in our criminal justice system, that caught the most attention. Justice Ginsburg did not join in that part of Sotomayor’s dissent. Justice Elana Kagan went ahead and wrote a dissent all her own.

There are lots of explanations for why that could be. But imagine if Justices Ginsburg and Kagan had signed onto Sotomayor’s dissent in its entirety. Imagine the expression of support that could have been. It would have at the least signaled a recognition by Sotomayor’s white feminist colleagues that for them too, race matters.

Maybe it could have been something like the hundreds of high school and collegiate athletes and supporters bending a knee in solidarity with Kaepernick and as an act of political protest, which is anything but “stupid.” Maybe it would look like U.S. women’s soccer star Megan Rapinoe silently taking a knee during her matches, and continuing to do so, despite criticism from the league.

That’s not “arrogant.” It’s all political protest. In other words, both constitutionally protected AND valuable.

And really what better, more American venue to have these expressions of political dissent than sporting events? I’ve written about the ways in which athletics can be a force for positive social change. We’ve seen this in the push for LGBTQ acceptance in sports, so much so that the National Women’s Hockey League not only has its first openly trans athlete; the league’s response seems to have been effectively “this is no big deal at all.”

Yet so much of American sports, especially professional athletics, remains wound up in expressions of compulsory patriotism: in God and country and freedom, all of which are, in some fashion, expressions of political speech. Meanwhile, much of the management structure in professional and collegiate sports remains very much invested in perpetuating white supremacy.

Justice Ginsburg believes in our democratic values; we know this from her opinions and dissents in reproductive rights cases, voting rights cases, and dozens of others in which she stood on the side of the less powerful to speak truth to power. Which is why it is so disappointing to see her fail to see sports venues as a platform for larger, more difficult conversations about human rights, racialized policing, and democracy. For white feminists especially, that’s not the kind of statement we can let slide.

As much as this is a scold on Justice Ginsburg for her careless statements on Kaepernick and the similar protests he has helped spark, it is also call to my fellow white feminists to do better. All of us. As Rapinoe herself explained, “I am kneeling because I have to do something. Anything. We all do.” Rapinoe used her platform to show support and to be an ally. She took a knee. The rest of white feminists should as well, in whatever way we can.

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