By Kevin Ryan, Esq.
Three times in the past week Justice Ruth Bader Ginsburg has offered strong opinions on the presidential race and her views of Donald Trump as a presidential hopeful. “I can’t imagine what the country would be with Donald Trump as our president,” she told an interviewer from The New York Times. Previously, in an interview with The Associated Press, she said she didn’t “want to think about the possibility [of a Trump victory],” because then “everything would be up for grabs.” She has labeled Mr. Trump as an inconsistent “faker” who “says whatever comes into his head,” noting “he really has an ego.”
Now, no matter what one thinks about Mr. Trump or his candidacy, such comments from a sitting Supreme Court justice seem to cross the line. Historically, justices on the Court have shied away from making political statements – and they certainly have refused to take a public position on candidates for national election. That does not mean, of course, that they did not have such positions – only that they didn’t state them bluntly in public as Justice Ginsburg has done. Many (including the Times editorial page) see Ginsburg’s remarks as unwise, unethical, damaging to the prestige of the Court, and (in Trump’s own words) “highly inappropriate.” An article in Slate talks of Ginsburg risking her legacy. More conservative news and opinion sources have heaped abuse on her.
And there’s something to all that criticism. Her entry into the political mudslinging festival may well damage her reputation and it may backfire, aiding rather than impeding Trump’s candidacy. Should the litigious Mr. Trump ever bring a case to the Court, her comments provide strong reasons for recusal – what are the chances that she can be impartial in such a case, given the vehemence of her comments? The possibility of a Trump victory in November only makes this problem worse, for then there will undoubtedly be a host of cases before the Court involving his administration. Many have hinted that Ginsburg’s forays into political commentary are unethical, though I have yet to see a clear case presented for exactly why this rises to the level of a violation of judicial ethics. (The ABA Journal contains a decent discussion of the arguments each way.) And her comments will surely accelerate the increasing tendency for the public to see the Court as a political body that decides matters not on the basis of law as such, but on the basis of firmly held political views loosely papered-over with legal argument. Highly inappropriate? At least strikingly out of the ordinary and contrary to the ways the game has previously been played.
The controversy raises important questions (in addition to the questions about the merits or demerits of a particular candidate). What is meant by “the rule of law”? What is the proper relation between the political branches and the (supposedly non-political) judiciary? What kinds of behavior do we (should we) expect from our judges? Does a citizen check her freedom of speech at the courthouse door when she assumes a seat on the bench? Is the Supreme Court a body of wise women and men, a kind of Platonic guardian class conducting a philosophy seminar, in which Truth and Justice emerge from objective discussion and mundane politics are set aside? And what if someone (a judge or any other public servant) truly and deeply believes that a particular candidate or political position constitutes a threat to the nation or the principles upon which the nation is founded? Should they simply shut up because speaking would undermine the dignity of their institution? (Ginsburg supporters, and perhaps Ginsburg herself, will point to the caving in – the refusal to stop, think, speak, and act – of German and Soviet judges not all that long ago.)
These questions are fundamental. They should be asked, thought about, debated. Justice Ginsburg’s actions may initiate a healthy public conversation about the answers – if only we can get past our penchant for wild assertions and over-the-top claims, a penchant that seems to be growing worse. No, I don’t know the answers. (My students always hated that about me: they wanted answers and I had only questions.) Socrates said that the unexamined life is not worth living, and that means we need to grapple with the tough questions about how we live, personally and as a people. In that regard perhaps Justice Ginsburg has been the gadfly we need at a critical moment in our history.
What do you think?
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