How to Think About Justice Ginsburg’s Trump Comments

The trial of Justice Ginsburg for violations of judicial propriety has concluded, the jury has deliberated, and the defendant has been found guilty. The Justice was wrong to publicly and repeatedly attack Republican presidential nominee Donald Trump.

The Justice has her defenders of course. Some simply believe Ginsburg can do no wrong. Some argue normal rules need not apply when it comes to Trump. Some see her comments as justified because there is value in judicial candor and bursting the myth that the Court somehow floats above politics.

But these are minority voices. The clear consensus is that Ginsburg was in error for speaking out as she did. Republicans and conservatives unanimously denounced her comments. But so did most judicial ethicists who expressed a view on the matter. A number of leading liberals chastised, ever so gently, their beloved Justice, noting that while they agreed with everything Ginsburg said, she shouldn’t have said it. Newspaper editorial boards reprimanded the Justice. Who would have thought the New York Times would run an editorial under the title “Donald Trump Is Right About Justice Ruth Bader Ginsburg”?

Ginsburg herself has now joined the chorus of her own critics. Today she issued an official mea culpa, describing her remarks as “ill-advised” and accepting that “[j]udges should avoid commenting on a candidate for public office.”

So Ginsburg was wrong. This much is clear. But it is less clear why she was wrong to say what she did. Why is it such a bad idea for Supreme Court justices to discuss presidential politics?

The quick answer is that justices talking politics somehow demeans the Court, that it compromises the Court’s legitimacy. My sense is that these fears tend to be exaggerated—when it comes to legitimacy, the Court is a remarkably hardy institution—but let’s accept that there is something to this critique. Let’s accept, that is, that when the justices engage in partisan disputes, popular respect for the Court takes a hit. For critics of controversial extrajudicial speech, this is pretty much the end of the story. The lesson is simple: justices should not say things that undermine the legitimacy of the Court.

But the discussion should not end here. We must not forget the potential value of controversial extrajudicial speech. Justices speaking directly and bluntly about controversial topics when off the bench can serve a valuable role: they can educate, they can explain workings of the Court, they can reveal the thinking of that particular justice, they can spark debate. For this reason, many controversial off-the-bench statements by Supreme Court justices should not be condemned simply because they threaten public respect for the Court. (I believe many of Justice Scalia’s most controversial extrajudicial statements were often too quickly condemned as categorically inappropriate. One thing the late Justice was uniquely good at was inspiring debate over important issues about the Court and the law.) Their value might balance out this risk. We need a legitimate Court. But we also need a public that thinks about the Court, that struggles with the issues the Court is struggling with. And we need justices who think that part of their job is to engage with the American people in ways beyond writing opinions few people ever read.

This is where Justice Ginsburg’s comments about Trump fall short and why they deserve the condemnation they have received. They are of minimal value. They offer no particular insight into anything that Justice Ginsburg is uniquely positioned to speak about. They are not about legal interpretation, about the Constitution, about the role of the judge in a democratic society. They are rather predictable criticisms on a topic that does not need Justice Ginsburg’s insights to spark public debate.

Some have argued that her comments have value in that they, as Noah Feldman put it, “help put to rest the myth that the justices are uninterested in politics and unaffected by it.” I agree that this myth should be challenged. I agree that there is value in giving the public a more accurate and constructive view of the Court, a view that goes beyond simplistic descriptions of judges as umpires calling balls and strikes. But what Justice Ginsburg did was to inject partisanship, not politics, into the discussion. Partisanship is about Republicans and Democrats, about Trump and Clinton. Politics, in the sense that the Supreme Court is (and always has been) a “political” court, is about something else. It is about conflicting understandings of principles of federalism and separation of powers, of the history of liberty and rights in America, of the core values of a constitutional democracy and the role of a Supreme Court in it.

If Justice Ginsburg said something in an interview that crossed a line of judicial propriety but got us talking about these kinds of issues, then her defenders would have had a case. But this time, as Justice Ginsburg finally realized, her critics were right.

Weekly Roundup—July 2, 2016

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

The Supreme Court released its final decisions of the 2015 term on Monday. The most closely watched was Whole Woman’s Health v. Hellerstedt, the Court’s most significant abortion ruling since 1992. In a 5-3 decision, with Justice Breyer writing for the majority, the Court struck down two Texas abortion regulations that would have sharply reduced the number of abortion providers in the state. Justice Alito registered his disagreement with the Court’s holding in a lengthy, strongly worded written dissent, portions of which he read from the bench.

For further reading: Oyez’s Body Politic offers an interactive walk through the history of abortion at the Supreme Court, from Roe to Whole Woman’s Health. The New York Times has SCOTUS reporter Adam Liptak’s story on the decision, an approving editorial lamenting that even three justices voted to uphold the law, an approving Linda Greenhouse lamenting the muted tone on Breyer’s opinion, and a roundup of reactions to the decision. The Economist analyzed Justice Kennedy’s votes in this case and in last week’s affirmative actions decision. Finally, ISCOTUS Director Christopher Schmidt dissected how Justice Breyer revised abortion doctrine in a post on this blog.

On Monday the Court also issued its decision in McDonnell v. United States, vacating former Virginia Governor Bob McDonnell’s corruption conviction. The Court unanimously held that McDonnell was convicted under a reading of federal corruption law that relied on too broad a reading of what was an “official act.”  In a SCOTUSblog symposium, Fred Wertheimer, President of Democracy 21, criticized the ruling: “The Supreme Court in this case leaned over backwards to protect officeholders and pretty much ignored the interests of citizens in honest government and the dangers of allowing officeholders to sell their office.” The National Law Review found much to like in the ruling, writing that Court resisted “the criminalization of ordinary politics—as distasteful and unseemly as that can often be.” Robert Bauer of The Washington Post suggests that this decision puts the responsibility on voters to “catch the crooks” in politics and vote them out of office.

In its final opinion of the term, Voisine v. United States, the Court held 6-2 that for purposes of firearm prohibition for convicted felons, a “misdemeanor crime of domestic violence” includes reckless domestic assault. Justice Thomas had already registered his strong feelings on this case during oral arguments when he broke his 10-year streak without asking a question to challenge the federal government’s lawyer. So it was no surprise that he wrote a strong dissent in this case. ” The Washington Post discussed the rarity of seeing the Court’s most conservative member, Justice Thomas, and the Court’s most liberal member, Justice Sotomayor, together as the lone dissenters. The Hill.com explained that for gun control advocates, this decision was “a victory for public safety and women and children affected by domestic violence.” At Slate, Nora Caplan-Bricker wrote that this was but a “hollow victory” for gun control.

An Eventful Term Comes to a Close:

The term stretched from October 5, 2016 to June 27, 2016 and the Justices decided 80 cases during that time. Scotusblog breaks down every holding from this term, here. Its complete “October Term 2015 Stat Pack” is here. And get a glimpse of the Court’s last day from Mark Walsh of Scotusblog.

New York Times reporter Adam Liptak gives the inside scoop on how reporters cover the Supreme Court.

The most significant event of the term was, of course, the passing of Justice Scalia. The end of the term sparked a new round of assessments of Scalia’s legacy. Lissandra Villa of Time.com explained that “Scalia’s conservative, originalist presence on the court could have changed the outcome” in key cases. Richard Wolf of USAToday.com considered how the Court maneuvered while “rowing with eight oars.”