Notorious RBG

I can’t really get too exercised about Ruth Bader Ginsburg’s imprudent comments about Trump:

“Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas,” argues Drezner, “but they never weighed in on presidential politics quite like this.” This is true, as far as it goes. But they did weigh in on presidential politics in a way that strikes me as far worse when they joined the Court’s majority in Bush v. Gore.

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.

Admittedly, Bush v. Gore is an unusual case. But it should be obvious that, even with respect to run-of-the-mill constitutional cases, an apolitical Supreme Court is an impossibility. Questions like what constitutes “cruel and unusual punishment” or a violation of the “due process of law” or an “unreasonable search and seizure” are not technical legal questions. They involve political values. This does not mean that Supreme Court justices are identical to legislators or that legal norms are entirely irrelevant. But it does mean that, at the level of the Supreme Court, “law” and “politics” cannot be neatly separated.

As Mark Tushnet of Harvard Law School points out, Ginsburg’s comments certainly violated norms, but the attractiveness of these norms is highly questionable. 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.

Other perspectives from Lithwick, Stern,and Beutler.