Ruth Bader Ginsburg's slam on Colin Kaepernick: Is it out of character?

Ruth Bader Ginsburg, a liberal icon on the Supreme Court, shocked many by criticizing Colin Kaepernick's national anthem protest. But her personal opinion doesn't necessarily influence how she'd look at the issue legally.

First Look

Supreme Court Justice Ruth Bader Ginsburg recently called Colin Kaepernick's refusal to stand for the national anthem at NFL games "dumb and disrespectful," an opinion that surprised many who thought her take contradicted two decades of liberal decisions on the nation's highest court.

Mr. Kaepernick began his protest in August, saying he would not stand during "The Star Spangled Banner" until racial injustice in America was appropriately addressed.

"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color," Kaepernick told NFL Media at the time. "To me, this is bigger than football and it would be selfish on my part to look the other way."

The San Francisco 49ers’ quarterback has received both praise and harsh criticism from fans and commentators, but the most startling response may have come from Justice Ginsburg.

"I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do." Ginsburg told Katie Couric in a Yahoo News interview. "I would point out how ridiculous it seems to me to do such an act."

The justice, who has been known for her role as a liberal icon and earned the nickname “Notorious R.B.G.,” surprised many of her fans with her take on Kaepernick's actions. As a champion for the rights of minorities on the court, it seems counterintuitive to many that she would choose to criticize a black man taking a stance on race-based injustice.

Kaepernick isn’t kneeling on the field alone anymore. More players in the league, and many others at the high school level or in other sports, have identified with his message and joined his movement with their own acts of protest.

"He's actually hit a vein," Fritz Polite, a professor at Shenandoah University and a US Army veteran who specializes in the intersection of sports, society, and business, previously told The Christian Science Monitor. "What Colin Kaepernick elucidates is the flag represents certain unalienable rights and freedoms. 'I'm exercising this freedom. Now you want to tell me I'm unpatriotic. All I'm doing is [exercising] all the rights and privileges people fight for.' "

Former NFL player Shannon Sharpe, who co-hosts the Fox Sports show "Undisputed," criticized Ginsburg's remarks.

"I would ask Justice Ginsburg, that when you see a man crying, don’t tell him to stop crying. Ask him, say, 'Sir why are you crying?' " he said. "We are seeing far too many unarmed black men dying at the hands of police with no accountability taking place."

While Ginsburg’s comments caused many to take pause, the justice didn’t necessarily stray from her constitutional philosophy. She may not like how Kaepernick and those who followed him have chosen to express their dissatisfaction with the current state of the justice system, but she believes they have every right to engage in that form of protected free speech. There's a difference between believing the government should protect certain behaviors and engaging in or supporting them.

"It’s dangerous to arrest people for conduct that doesn’t jeopardize the health or well-being of other people," she also said. "It is a symbol they are engaged in."

This isn't the first time Ginsburg has surprised observers by issuing her personal opinion. In a series of interviews, she criticized the Republican presidential candidate Donald Trump, which in turn brought criticism down on herself for violating her judicial independence. As Mark Joseph Stern wrote for Slate: 

There is really very little to debate about the ethics of Ginsburg’s comments. They were plainly a violation, the kind of partisan partiality that judicial ethics codes strive to prevent. But Ginsburg, who is a quietly canny judicial and political strategist, surely knows that her comments were an ethical error. That leads to a fascinating question: Why would the justice risk her reputation and good standing – and even her power to hear cases involving Trump – for a few quick jabs at the candidate? The answer, I suspect, is that Ginsburg has decided to sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can.