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.