The Norms RBG Violated Don’t Matter

Ruth Bader Ginsburg has come under fire for commenting on Trump’s candidacy and supposedly violating her impartiality—but this criticism takes for granted that impartiality exists within the Supreme Court to begin with.

By Scott Lemieux

Tagged Donald TrumpRuth Bader GinsbergSupreme Court

In a recent interview with Adam Liptak of The New York Times, Justice Ruth Bader Ginsburg left little doubt about her preferences in the 2016 presidential elections. She told Liptak that “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” and jokingly suggested that it would be time to move to New Zealand if Trump won. She has also made a series of other, somewhat less explicit comments making it clear that she’s horrified by the possibility of a Trump presidency.

Ginsburg’s comments have generated criticism not just from Trump but also from legal scholars and pundits (many of whom agree with Ginsburg’s comments on the merits.) And I do think there are some valid reasons to find Ginsburg comments inappropriate. But I also think that they need to be kept in perspective. Supreme Court justices have political views, and these views are reflected to lesser and greater degrees in politically salient cases, and these things remain true even if we have to merely infer how Supreme Court justices intend to vote.

It is fair to say that Ginsburg’s comments were highly unusual. And the strongest basis for deeming them inappropriate is that, as Daniel Drezner observes, they violate the (nonbinding) Code of Conduct for United States Judges, which states that federal judges should not “publicly endorse or oppose a candidate for public office.” It’s entirely reasonable to object to Ginsburg’s remarks on these grounds.

Where I get off the bus, however, is with respect to the question of the magnitude of Ginsburg’s transgression. According to Drezner, Ginsburg “bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.” This conclusion is overwrought. Ginsburg’s comments didn’t tell us anything we didn’t already know about her or about Supreme Court justices in general, they won’t change the nature of the Supreme Court as an institution, and they won’t have a meaningful causal impact on the polarization of the Court.

It is true, as far as it goes, that the Supreme Court is probably going to follow the polarization that has come to characterize American politics in general. Within the next decade, the median vote of the Supreme Court is overwhelmingly likely to be a reliable liberal or conservative vote rather than the moderate Republicans in the mold of Anthony Kennedy that have controlled the Court since early in the Nixon administration. But these will happen because of long-standing trends, most notably the fact that Kennedy-style conservatives are rapidly becoming extinct and it would be nearly impossible politically for a Republican president to appoint one even if he could find one. One can celebrate or deplore this development, but nobody is going to change their mind about it based on Ginsburg’s remarks.

“Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas,” argues Drezner, “but they never weighed in on presidential politics quite like this.” This is true, as far as it goes. But they did weigh in on presidential politics in a way that strikes me as far worse when they joined the Court’s majority in Bush v. Gore.

The 2000 election ended up on the Supreme Court’s doorstep, and the conclusion was the strongest possible vindication of the legal realist view that politics heavily influences Supreme Court decision-making imaginable. It’s not just that Thomas and Scalia, in order to give the election to Bush, endorsed a broad, innovative equal protection claim of the kind that they had spent their entire judicial careers repudiating. They and their three colleagues refused to apply this new principle going forward (“[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”) And even worse than this, they refused to apply the principle to the Florida election recount itself.  If the equal protection clause requires uniform recount, then the vote count that showed Bush ahead was also unconstitutional–and yet the Court upheld it based on a deadline that the Court itself created.

So to see Ginsburg as crossing a line that Scalia and Thomas never did, you have to argue that joining an essentially lawless decision installing your preferred candidate in the White House doesn’t undermine the “apolitical” nature of the federal judiciary, so long as you don’t make your candidate preference explicit. I find this hard to sustain.

Admittedly, Bush v. Gore is an unusual case. But it should be obvious that, even with respect to run-of-the-mill constitutional cases, an apolitical Supreme Court is an impossibility. Questions like what constitutes “cruel and unusual punishment” or a violation of the “due process of law” or an “unreasonable search and seizure” are not technical legal questions. They involve political values. This does not mean that Supreme Court justices are identical to legislators or that legal norms are entirely irrelevant. But it does mean that, at the level of the Supreme Court, “law” and “politics” cannot be neatly separated.

As Mark Tushnet of Harvard Law School points out, Ginsburg’s comments certainly violated norms, but the attractiveness of these norms is highly questionable. Essentially, the argument that Ginsburg’s comments are a major transgression boils down to a claim that it’s important to maintain the fiction that Supreme Court justices are apolitical decision-makers to begin with. We are supposed to pretend to believe, in other words, that when John Roberts rules a crucial provision of the Voting Rights Act unconstitutional he’s just an umpire calling balls and strikes and his long-standing partisan opposition to an expansive conception of voting rights had nothing to do with it. I can understand why judges would like to maintain this fiction, but the value for the public in doing so is much less obvious. And, as Tushnet says, for Supreme Court justices to discuss their political views—but only in private—is arguably worse for democracy than Ginsburg’s candor.

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Scott Lemieux is an instructor at SUNY Albany, with a focus on the Supreme Court and constitutional law. He is a frequent contributor to the Guardian US, The American Prospect, The Week and The New Republic and blogs at Lawyers, Guns and Money.

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