by Michael Dorf
My Verdict column for this week examines Justice Ruth Bader Ginsburg's criticism of Colin Kaepernick's refusal to stand for the national anthem. Interviewed by Katie Couric, Ginsburg called Kaepernick's ongoing boycott--which protests police brutality and racism--"dumb" and "disrespectful," even as she acknowledged that he cannot be criminally charged for his freedom of speech. I argue that while Ginsburg or any other justice can say this sort of thing without violating any judicial code of ethics (and not just because none applies to Supreme Court justices), she was unjustified in criticizing Kaepernick.
I drafted the column on Friday of last week, and by the end of the day, Justice Ginsburg had announced that she regretted the criticism. Thus, I edited the column (before publication) to make it less a critique of Ginsburg's initial criticism of Kaepernick and more of an exploration of why she was right to rescind her criticism.
My column explains why kneeling to protest the national anthem is roughly equivalent to sitting or standing quietly during the Pledge of Allegiance. Because liberals generally don't think there is anything wrong with the latter, we also shouldn't think there's anything "dumb" or "disrespectful" about the former. The column also explores the possibility that Ginsburg was making a comment about the content rather than the form of Kaepernick's protest, but I rule that out as well, because Kaepernick is raising consciousness about important issues.
Here I want to suggest and then reject a way of seeing the initial Ginsburg/Kaepernick split through the familiar lens of reformer-versus-radical. We might be tempted to think of Ginsburg as following in the footsteps of Frederick Douglass, who (in an 1860 speech in Glasgow) acknowledged that the (pre-Civil War) Constitution may have been intended by some and had been construed by many as pro-slavery, but that given its most natural meaning, the Constitution was anti-slavery. Meanwhile, we can think of Kaepernick as walking the same path as William Lloyd Garrison, who condemned the Constitution as a "covenant with death" and "an agreement with hell." Or, if you prefer a more recent dichotomy, Ginsburg was Thurgood Marshall and MLK, while Kaepernick was Malcolm X and Huey Newton.
This comparison resonates with an intriguing take of recent activism. I recently read a draft of an excellent paper (and heard a likewise fascinating presentation) by Ohio State Law Professor Amna Akbar, in which she contrasts the reformist vision for policing that one sees in the Justice Department's reports on policing practices in Ferguson and in Baltimore with what she calls the "abolitionist" approach to policing minority communities set forth in the Black Lives Matter Platform. (The paper is still in the development stage and thus not yet publicly available on SSRN or otherwise, but Prof. Akbar graciously granted permission to me to discuss it here.) She argues persuasively that the vision articulated in the BLM Platform "echoes earlier platforms of the Black Panther Party and the Chicano Young Lords." If the DOJ has a mainstream civil rights focus that grows out of the Marshall/King vision, then, to an extent not widely appreciated, Black Lives Matter has a Black Power focus that grows out of the Malcolm X/Huey Newton vision. And the closeness of Kaepernick's protest to the activism of Black Lives Matter thus reinforces the (initial) distance between Ginsburg and Kaepernick as a manifestation of a long-running split between reformers and radicals.
And yet, there is something about these comparisons that seems to get Kaepernick wrong. Kaepernick is not demanding change by any means necessary. He is engaging in wholly peaceful protest. His is not even an act of civil disobedience, as he has no legal obligation to stand for the national anthem.
Nor is it evident that Kaepernick's substantive goals are radical, rather than reformist. Back in late August, Kaepernick explained that he would stand for the national anthem when he feels "like that flag represents what it's supposed to represent, and this country is representing people the way it's supposed to." In an important sense, that is the Frederick Douglass view of the Constitution: Best understood, it advances liberty and equality; it's not being understood that way now; let's work to redeem it.
In light of the mildness of Kaepernick's means and ends, the reaction against Kaepernick by various commentators and current and former athletes is interesting. A great many have been supportive, but some have been quite critical. Some of that criticism has been mindless, as when Ted Cruz called Kaepernick "spoiled" (and attacked President Obama for supporting Kaepernick's right to free speech).
But there has also been some thoughtful disagreement with Kaepernick. The most interesting I have seen came from Baltimore Ravens tight end Benjamin Watson. While defending Kaepernick's right to free speech and pretty much agreeing with Kaepernick about the issues of racial justice Kaepernick cares about, Watson argued that one can stand for the national anthem as a kind of mindful (as opposed to mindless) patriotism. (I say this even though Watson's views on a number of issues differ from mine. E.g., he is pro-life and he thinks that "religious freedom is increasingly under attack.)
There is a sense in which both men are right. Watson is obviously right that if any problems at all precluded participation in the national anthem, then no one could ever stand for the song, because our country is not and never will be perfect. But I take Watson to be making more than that trivial point. I take him to be saying that we are not merely imperfect; we are deeply troubled still by our original sin, just as Kaepernick argues. And even so, Watson thinks that the right answer is to engage in the collective patriotic ritual.
There is no doubt something to that--especially when coupled with a defense of the right of Kaepernick and others to dissent. But even so, I think the very thoughtfulness of Watson's defense of mindful patriotism shows the efficacy of Kaepernick's protest. Kaepernick has succeeded in refusing to accept racial injustice as normal, but in doing that he joins a chorus of many voices, including other athletes (like NBA stars Lebron James, Chris Paul, and Carmelo Anthony). What Kaepernick almost alone has done is to spark a renewed conversation about the meaning of patriotism.