Was Justice Ginsburg Wrong?

It depends on whether you think Trump is just another presidential candidate.

By Nathan Pippenger

Tagged CivicsDonald TrumpmediaMilitarySupreme Court

In a recent interview, Justice Ruth Bader Ginsburg made no secret of her disdain for a certain presidential candidate: “I can’t imagine what this place would be­­­—I can’t imagine what the country would be—with Donald Trump as our president.” The comments have legal ethicists concerned and conservatives furious. In the Los Angeles Times, Michael McGough calls them “careless” and charges Ginsburg with worsening the Court’s reputation for partisanship. One law professor recommends that Ginsburg’s colleagues should “tell her to be quiet or step down.” The Chicago Tribune, arguing that the Court “stands outside of petty politics,” charges her with “hurt[ing] the cause of justice.”

The propriety of Justice Ginsburg’s comments is a fair topic for debate, but even so, there’s a touch of hand-wringing in some of these reactions. As it happens, I wrote recently on the very topic raised in her comments—the character of the nation Trump will leave in his wake—and, unlike the Tribune’s editorial board, I don’t consider it to be “petty politics” in the least. In fact, this particular episode is a perfect illustration of the unique difficulties posed by Trump’s candidacy.

Participants in political life operate according to a complex web of civic and social norms, some of which are attached to specific positions and offices. These norms help preserve the basic structures of the political system. They encompass the most basic elements of reciprocity, fair play, and mutual respect in political life; they encourage us to settle disputes without violence. For some people, they may impose special obligations (like the appearance of impartiality during presidential campaigns). These norms are the practices and mindsets that help support everyday political life.

But do our obligations change in any way when a candidate like Trump comes along, posing a radical challenge to the basic system that those norms support? This is not an idle question. Journalists are already facing it: normally, they are expected to remain impartial among candidates. But Trump’s avalanche of lies, insinuations, and conspiracy theorizing cannot be treated as everyday campaign rhetoric without risking serious harm to the very system that impartial journalism serves. Journalists are therefore being forced, often to their great discomfort, into a more aggressive form of coverage than they would normally think appropriate.

Or consider the military establishment who, like judges, are expected to keep their distance from electoral politics. They, too, have felt the strain of upholding ordinary norms in extraordinary circumstances, and so far seem to be handling it through former officials who undoubtedly speak on behalf of those currently serving. How else should one interpret the public declaration of former CIA Director Michael Hayden that the U.S. military would disobey Trump’s promised orders to carry out torture and war crimes? There’s no guarantee that this campaign won’t bring a still more open confrontation. After all, in response to Hayden’s comments, Trump ominously promised: “They won’t refuse. They’re not going to refuse me.… If I say ‘Do it,’ they’re going to do it.”

Back in May, E.J. Dionne warned against the “mainstreaming” of Trump, writing that Americans must resist “every attempt to move Trump into the political mainstream.” Dionne mostly had the media in mind, but Ginsburg’s recent experience is a reminder that journalists are not the only figures who are reconsidering their normal way of doing things. A pharisaic fidelity to the standard interpretation of many familiar norms could end up enabling the rise of a candidate who expresses utter contempt for the very system they support. This can’t mean that the rest of us are justified in sinking to Trump’s level, but it may demand a more forthright tone from journalists and more outspoken resistance from figures close to the armed forces. Whether it justifies such a public condemnation from a sitting Supreme Court justice is a fair topic for debate—but such an argument misses the point unless it first considers whether Trump is really just another candidate.

Read more about CivicsDonald TrumpmediaMilitarySupreme Court

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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