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Red card for Ginsburg

Overt and public condemnation of a candidate for office by a sitting member of the Supreme Court is unprecedented.

Empty white chair with black background

In a series of much noticed interviews, Justice Ruth Bader Ginsburg of the Supreme Court of the United States made it perfectly clear that she does not think much at all of Donald Trump, the presumptive Republican nominee for the presidency. Such overt and public condemnation of a candidate for office by a sitting member of the Supreme Court is apparently unprecedented in the United States (though then-Justice Sandra Day O’Connor’s privately expressed dismay at the prospect of Al Gore’s election in 2000 became public knowledge). Justice Ginsburg’s comments have been widely condemned, including by the editorial boards of the New York Times and the Washington Post, and she ended up expressing regret, although not quite apologizing. Still, there might be some lessons to draw from this imbroglio.

One lesson is that appearances matter. It’s not exactly a shock that Justice Ginsburg doesn’t like Mr. Trump. (For the record ― I don’t like him either.) Indeed, given the contempt of many prominent right-leaning legal academics for Mr. Trump, it wouldn’t exactly be surprising if all of Justice Ginsburg’s colleagues, not just her habitual ideological allies, felt the same way. Why, then, should we care that Justice Ginsburg publicly expressed what we could reasonably guess she already thought? Some people, indeed, have been praising her for her “transparency.” But we insist on judges keeping an appearance of neutrality, even we can guess their likely thinking on an issue, for a good reason. It’s not merely, as some have said (following La Rochefoucauld), a matter of the vice of bias paying homage to the virtue of impartiality. A judge having an opinion on a social controversy is not in itself a vice, because to have no such opinions at all, judges would need to be quite out of touch with the society in which they live. But so long as the judge keeps that opinion to him- or herself, or at least does not publicly commit to it, there is a better chance that he or she will be able to set it aside when adjudicating, or even to revise it in the face of proof and argument. It is human nature to stand by opinions to which one is publicly committed, and the judicial duty of reserve is supposed to shield judges from the temptation to seek consistency by closing their minds.

One lesson is that appearances matter.

Another lesson is, I am afraid, that age matters too. Justice Ginsburg is 83. Richard Posner, who has been increasingly controversial in his extra-judicial public statements ― most recently, disparaging the U.S. Constitution and its study (Josh Blackman documented his statements to that effect at his blog), and ranting about the posthumous celebrations of the late Justice Scalia ―, is 77. Speaking of Justice Scalia, he too was, many thought, increasingly strident in his last years, his late 70s. And let’s not forget a judge who was notorious long before Justice Ginsburg became “the notorious RBG,” and is likely to remain so long after she is forgotten ― Lord Denning, who had to retire at the age of 83 after publishing a book some passages of which were seen as racist. Whether age changes character, or merely reveals it by removing inhibitions, I do not know. But whatever the reason, I suspect that it is no accident that these distinguished jurists all became increasingly loose cannons as they grew older. Mandatory retirement at 75 for federally-appointed judges is looking like that quintessential worthwhile Canadian initiative ― underappreciated, but worthwhile indeed.  

Last but not least, the way we treat judges matters as well. As prof. Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

Justice Ginsburg’s misguided attempt at political commentary is something like the judicial equivalent of Zinédine Zidane’s infamous head-butt to Marco Materazzi in the final of the 2006 World Cup: a selfish gesture of self-expression which, however provoked, only harmed its author’s colleagues and institution, and cast a shadow on the final stages of a distinguished career. Like Mr. Zidane, Justice Ginsburg has her steadfast admirers and apologists. But, like him, she deserves a red card for her outburst.