Everyone’s got their knickers in a twist over the comments by the queen of the Supreme Court, Ruth Bader Ginsburg. While the vast majority of the commentariat is reaching for the smelling salts, I don’t agree (I’m looking at you, Dave Asche, you ignorant slut).
While what Ginsburg did violated the nominal norms of “appropriate” judicial behavior, (a) they pale in comparison to the far more politically consequential acts of other justices (Bush v. Gore, Scalia quail hunting with Dick Cheney while a case was pending, Alito’s reaction to Obama’s State of the Union address), (b) the Supreme Court, while nominally apolitical, is and has been for a long time anything but, and a little bit of honesty doesn’t change that fact, and (c) the threat to all of our democratic institutions (including the Court) presented by the prospect of a Trump presidency is sufficiently severe that I’d argue that Ginsburg not only was entitled to say what she did, but had a moral obligation to do so. And let’s not forget (d), she has precisely zero fucks left to give.
I will be told that I am a Bad Analyst because I am essentially arguing that multiple wrongs make a right, but I don’t really care. Leave aside the historic reality that the Court always has been politicized, sometimes garishly so, but we are now at the end of a 30-year process in which a well-financed conservative infrastructure restructured the federal court system from top to bottom, seeding it with reliable judges who supported dubious interpretations of laws to which their ideological sponsors were unfriendly.
Ginsberg is not intolerant of conservatives; she and Scalia were opera buddies. But she’s 83, sharp as a tack, and a survivor of pancreatic cancer, which generally gives you the same odds as stepping in front of a westbound freight. Her big bag of fcks was empty long ago. She’s seen what’s happened to the courts first-hand, and she is right to warn us that a Trump administration is just as likely to put the gardener at Mar-A-Lago on the bench as not. Liberals, of course, are supposed to make sure they use the right fork when they sit down to dinner with barbarians.
Scott Lemieux has a more academic take that reaches a similar conclusion:
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.
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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.
I particularly like the analysis of veteran court watcher Dahlia Lithwick at Slate. Pay close attention to the last bit, because I suspect it’s closer to the truth than any other explanation.
The serious arguments in favor of Ginsburg’s conduct are that (1) the nation faces an unparalleled existential threat, at the nomination of a man who imperils the very rule of law and (2) nobody really believes judges are impartial anyhow, so why shouldn’t we celebrate her for ripping off the umpire mask and telling it like it is.
Under the first theory, Ginsburg is correct to expend whatever moral capital she has accrued to say out loud what most politicians are afraid to say, because we are in an extraordinary moment in history, a terrifying period of racism, xenophobia, and violence, and it’s incumbent on even traditionally temperate citizens to speak out. According to this view, the failure to condemn Trump would be its own form of cowardice, and Ginsburg only did what a sane person facing a fascist leader should do. Under the second theory, nobody over age 7 really thinks judges have no political preferences, and it’s better to have them laid bare than hidden under flimsy claims of oracular impartiality.
I have a great deal of respect for the first argument, and somewhat less for the second. The American people aren’t asking their judges and justices to lie to them about personal politics, so much as asking that there be a place where this type of revelation be tempered for the greater good. But there is a third important reason Ginsburg may have spoken out, and it’s getting less attention than it probably deserves: She may be trying to speak on behalf of the judicial branch itself, a branch that has been almost completely silent in the face of six brutal months of attacks from the right.
It started on the day of Justice Antonin Scalia’s death, when Republican officials immediately stated that they would not fill his vacant seat for purely partisan reasons. In response to these attacks the court was silent. It continued with an assault on the judicial branch by Sen. Chuck Grassley, who claimed that the Roberts Court is openly partisan. In response to this criticism the court was silent. Then there was the contemptuous Republican dismissal of the Merrick Garland nomination, an unparalleled act of disrespect for the president and the high court, shown by those who wouldn’t even offer a respected jurist a hearing. The response from the court? Silence. Then came the fatuous GOP claims that it would not affect the court to be short-staffed for nearly a year. In response the court was silent—with the exception of Justice Ginsburg, who stated at the end of May that the court could not do its job effectively with only eight members. And then there were Trump’s vicious and baseless attacks on a respected federal judge whom Trump claimed was biased against him because he was Mexican (he isn’t) and that all Mexicans are biased against Trump because of his stupid wall. Again, the formal response from the entire judicial branch? Silence. Silence in the face of attacks on the judicial branch is what judges do best, and they’ve made an art form of it this year.
If you look carefully at Ginsburg’s statements this past week, she wasn’t merely taking potshots at Trump. She was also simply taking Republicans in the Senate to task for refusing to even hold a hearing for Garland, a statement we have yet to hear from anyone of her stature in the judicial branch. This obstruction has been an unparalleled act of disrespect toward her court, and yet nobody on that court aside from her has said so. Ginsburg was also saying that the stakes for this election could not be higher with respect to the composition of the court itself, and that whatever norms and customs preclude judges from acknowledging that out loud cannot be more urgent than the future of the court itself.
In one sense Ginsburg, with her war on Trump, became exactly the kind of politicized judicial actor Grassley had once wrongly accused judges like her of being. In another sense, by speaking up for a judicial branch that has absorbed one body blow after another in recent months, in stoic squint-eyed black-robed fashion, she did nothing but level the playing field. If the court is really going to be fair game in the nihilist rush to break government, she is signaling that the court may just need to pick up arms and fight back.
So yes, RBG’s comments violated the canons of judicial behavior, but in the context of the world we actually live in, seriously, who cares? It’s good that she walked them back at least a little, but at the end of the day, I think she performed a great public service.
Hopefully we as an electorate heed what she says. For our sake, and for our civilization. More on this point coming right up (hey I’m stuck in an airport, gimme a break).