Paul L. Caron
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Wednesday, July 13, 2016

NY Times Debate:  Was It Proper For Justice Ginsburg To Denounce Trump?

NY Times Room for DebateNew York Times Room For Debate, Can a Supreme Court Justice Denounce a Candidate?:

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” Supreme Court Justice Ruth Bader Ginsburg said in an interview on Friday. Trump’s election would have led her late husband to say, “‘Now it’s time for us to move to New Zealand,’” she added.

Her comments raised eyebrows even among her fans in the legal community. Is it ever appropriate for justices to announce a partisan position in an election?

Steven Lubet (Northwestern), Chemerinsky on Ginsburg:  

Butler and Chemerinsky defend Justice Ginsburg, and Gillers criticizes her.  I agree with Gillers, of course, and Butler's argument is plausible.  Chemerinsky, I think, gets it completely wrong when it comes to Ginsburg's denunciation of Trump. ... Chemerinsky believes that it is better to know about a judge's biases than to leave them hidden, but he ignores the problems of (1) strengthening biases unnecessarily, and (2) damaging the Court's reputation for impartiality, even in situations where decisions may be fairly rendered.

Noah Feldman (Harvard), It's Fine for Supreme Court Justices to Speak Their Minds:

Doesn’t everyone have an outspoken Jewish grandmother? That was my thought on reading the indignant commentary on Justice Ruth Bader Ginsburg’s unflattering assessment of Donald Trump in aninterview with the New York Times.

To put the point more seriously, there’s nothing wrong with a sitting Supreme Court justice expressing her personal political views when they don’t implicate any case that’s currently before the court.

Justices aren’t priests -- and the myth that they are is bad for democracy and constitutional law. If a justice chooses to open up, the skies won’t fall. The 83-year-old Ginsburg’s rigorous ethical reputation will remain intact. And the legitimacy of the court will not be harmed.

Don’t let the black robes fool you. Nothing in the Constitution – which by the way also says nothing about robes -- demands that the justices be nonpartisan, or even pretend to be. ... Life tenure guarantees independence, not neutrality. 

If Ginsburg’s comments help put to rest the myth that the justices are uninterested in politics and unaffected by it, that’s good. A strong democracy rests on a correct understanding of its institutions — not myths that no one has ever really believed, anyway.

Mark Tushnet (Harvard), The Flap Over Justice Ginsburg's Interviews:

To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases.

Steven Lubet (Northwestern), Tushnet on Ginsburg:

Implicit in this argument is the assumption that all sophisticated people recognize the political intentions of judges, so we might as well pull back the curtain by encouraging them. to simply come out and campaign (or accepting that they will). ...  

We may not expect judges to be free from political opinions, but we do expect them to try to put them aside when judging.    Is that always possible?  Of course not.  Is it ever possible? Resoundingly, yes. ...

Political neutrality is not a facade, it's an aspiration.  When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg's recent remarks.

Jonathan Adler (Case Western), Justice Ginsburg Takes Selfless Actions to Prevent Election Litigation Deadlock:

[B]y repeatedly making disparaging comments about the presumptive Republican nominee, Ginsburg has ensured that only seven justices will be able to hear Trump-related cases, thereby ensuring there will be no tie votes in any such case. In so acting, she has performed a valuable public service for which we should all be grateful.

New York Times editorial, Donald Trump Is Right About Justice Ruth Bader Ginsburg:

Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling. ...

There is no legal requirement that Supreme Court justices refrain from commenting on a presidential campaign. But Justice Ginsburg’s comments show why their tradition has been to keep silent. ... [J]ust imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law? ...

Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.

https://taxprof.typepad.com/taxprof_blog/2016/07/ny-times-debatewas-it-proper-for-justice-ginsburg-to-denounce-trump.html

Legal Education, Political News | Permalink

Comments

PN, can you kindly point to me any proof for your assumption regarding Justice O'Connor's motivation? Thanks.

Posted by: Mike Petrik | Jul 18, 2016 1:03:38 PM

PN, that belief was disproved in 2001:
http://www.nytimes.com/2001/11/12/politics/12VOTE.html

As with any ultra-close outcome, any number of factors can be cited as being the cause of the loss. But in this case the referees did not steal the game. One can argue that the Florida Supreme Court tried to pull the result one way and that the US Supreme Court tried to pull it the other way, but the facts say that the result would have been the same had both courts stayed out of it. Not to mention that the House of Representatives would have had the final word on any remaining dispute.

Posted by: AMT buff | Jul 18, 2016 9:33:43 AM

Maybe the Justice Ginsburg is senile and drinks too much wine? Not to worry. She will end up on the wrong side of history. She is almost there now. She was never a legal scholar, so some of us will not miss her.

Posted by: Diogenes | Jul 14, 2016 4:33:23 PM

Mr. Petrik: With her husband ailing from Alzheimer’s disease, O’Connor was contemplating retiring and wanted a Republican appointed as her successor. Had she voted to permit all of the Florida ballots to be counted, Gore would have won. Her successor likely would have been a Democrat.

Posted by: Publius Novus | Jul 14, 2016 1:11:04 PM

Democrat voters be forworned, lady RBG is retiring next year and that was her message to you voters.

Posted by: Benjamin Rwaramba | Jul 13, 2016 6:53:21 PM

I agree with the Captain. Forget the nation. The world will not survive a Trump presidency. We will all be dead for sure.

Posted by: Mike Petrik | Jul 13, 2016 2:36:33 PM

She is absolutely correct to sound the clarion call. A warning. The check engine light is on. Nothing less than the predictable, stable, rule of law is at stake. Our authority as a benevolent superpower and a guardian of human dignity and liberty is at stake. The coal rollers in their F-150s are voting "just to kick some ass."

Posted by: Captain Hruska Carswell, Continuance King | Jul 13, 2016 12:48:22 PM

PN,
What "motivation" are you referring to?

Posted by: Mike Petrik | Jul 13, 2016 12:05:38 PM

Notorious RBG may be showing her age a bit. The wisdom of FDR's court "packing" plan, which is essentially the current law for all federal judges except SCOTUS, has become apparent over the years. On the other hand, RBG’s comments are hardly any worse than Mme. Justice O’Connor’s post-hoc admission about her motivation behind her vote in Gore v. Bush–and her regrets.

Posted by: Publius Novus | Jul 13, 2016 8:40:40 AM

Isn't there something amiss when the votes of four of the current Supreme Court Justices inevitably favor the result that progressives prefer, regardless of any legal authority?

An unelected group of partisan ideologues has no business overruling elected representatives of the people. That's why partisanship in the courts is so corrosive.

Posted by: AMTbuff | Jul 13, 2016 6:14:06 AM

She' jealous that Sotomayor's book sold more than hers.

Posted by: mike livingston | Jul 13, 2016 2:45:10 AM