By Tony Mauro, From Supreme Court Brief

U.S. Supreme Court Justice Ruth Bader Ginsburg is learning an unwritten rule of high-profile life in the digital age: if you speak publicly often enough, you will eventually say something that makes trouble, ethical or otherwise.

In an extraordinary string of public discussions and interviews in recent months Ginsburg has answered, without apparent hesitation, the kind of questions that justices usually sidestep about abortion, same-sex marriage and even why she fell asleep at the State of the Union address.

Ginsburg’s statements in a Feb. 11 Bloomberg News interview, including her view that it “would not take a large adjustment” for the public to accept a decision favoring same-sex marriage, made headlines—and prompted calls for her to recuse in pending cases on the issue.

Her explanation on Feb. 12 at a Smithsonian Institution event that she was not “100 percent sober” at the State of the Union address in January exploded into a Twitter meme—even though all she said was that she had a glass of “Opus something or other” during dinner with her colleagues before the speech. Soon the Opus One winery in California joined the torrent, tweeting, “We are just glad to have been a part of that meal with distinguished guests.”

By the time of Ginsburg’s next interview, taped on Feb. 13 for broadcast Monday night on MSNBC, she sounded more cautious.

Asked about the rapid acceptance of gay rights, in contrast with setbacks for women, Ginsburg said, “I don’t want to talk about what you describe as gay rights. I don’t want to suggest how the court will decide that case, one way or another.”

And on her sleepiness at the State of the Union, Ginsburg said that in addition to the wine, she had been up writing at all hours the night before. “My pen was hot,” she said.

Afterward, MSNBC interviewer Irin Carmon reflected on Ginsburg’s new reticence: “She is the ‘Notorious R.B.G.’ But she doesn’t want to harm the causes she cares about.”

Thus ended a remarkable period in the unaccustomed celebrity life of an 81-year-old Supreme Court justice. The rock-star boldness of the once-reticent Ginsburg is triggering debate over how public justices should be, and how she might affect the image of the court.

“I don’t believe it’s too much. She seems to keep a good balance and focus on the important issues,” said Vivian Hood, who advises lawyers on communications and social media strategy as president for public relations at Jaffe. “By being steadfast with beliefs about controversial topics, showing a personal side and generally being visible with dialogue about important issues, Justice Ginsburg gives further credence to her legacy.”

Hood added that as a role model for women, “I think it is critical that she continue to be open and share her voice.”

Mark Corallo, a former George W. Bush Justice Department spokesman who counsels politicians and lawyers on communications strategy and crisis management, has a different view.

“There’s something about the Supreme Court that is more dignified. Justices are not supposed to be celebrities. They don’t do politics like the other branches,” Corallo said. Ginsburg’s recent comments, Corallo said, “seem a little unseemly. Too much exposure can be a bad thing, especially for public servants.” And especially, he noted, in the digital world when even the most fleeting remark can go viral.

But Corallo does not think Ginsburg is deliberately seeking the limelight. “For people of a certain age, the filter often comes off,” he said.

Ginsburg is not the only justice who has broken the wallflower mold in the Information Age. Justices promoting their own books get remarkably chatty. Justice Antonin Scalia has developed a following with public pronouncements that sometimes include strong hints about how he will vote in pending cases.

At the Smithsonian event where Ginsburg spoke about same-sex marriage, Scalia also brought up the topic. “Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?” Scalia asked.

Earlier comments by Scalia about homosexuality prompted some to wonder whether he should be recused in gay marriage cases. And in 2006, Scalia’s remarks about Guantánamo detainees prompted lawyers in a related case to ask that he recuse. He did not.

But it would be hard to identify any justice in history—except, perhaps, William O. Douglas—who could top Ginsburg’s high public profile, built with a streak of interviews and appearances in recent years.

Ginsburg’s speaking tour is not fueled by the need to sell books but rather, some say, her desire to educate about the court—and to humanize it as well.

“Her accounts are often personal, sometimes self-deprecating,” said Scott Dodson, editor of the new book, The Legacy of Ruth Bader Ginsburg. “They tend not to erode the public legitimacy of the court but rather to reinforce the idea that the court is a human institution.”

But Ginsburg likely has another motivation that has compelled other justices—think Warren Burger and Harry Blackmun—to be more public late in their tenure.

Justices try to frame, or re-frame, how history will view them and their decisions.

With the retirement of Justice John Paul Stevens in 2010, Ginsburg became the most senior liberal member, a perch she has used to criticize the conservative Roberts Court, both in public and in her dissents.

“On substantive issues on which the court has spoken, she seeks to expand the reach of her opinions to give them longevity and more influence,” Dodson, a professor at UC Hastings College of the Law, said.

Several essays in the book on Ginsburg locate the beginning of her public openness at the 2009 oral argument in Safford Unified School District v. Redding, a Fourth Amendment case that involved the strip search of a middle school girl. Male justices made light of the intrusion, and Ginsburg, then the only female justice, bristled at their insensitivity.

In an unusual interview with Joan Biskupic while the case was still pending, Ginsburg complained about her male colleagues. “They have never been a 13-year-old girl,” she said.

Slate’s Dahlia Lithwick wrote in the book, “It was almost as if something snapped in the sole female justice … Ginsburg had choked down the vocal outrage in the 1970s, but she couldn’t quite bring herself to do it again in the new millennium.”

IMAGE: Justice Ruth Bader Ginsburg on stage during a talk with law dean William Treanor for the Annual Dean’s Lecture at Georgetown University Law Center. February 4, 2015. Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202718217855/Life-in-the-Limelight-for-Notorious-RBG#ixzz3SCGR91UM