Justice Ginsburg and the Emperor's New Clothes

By Eric Segall

How does a reliably liberal and feminist Supreme Court Justice get the New York Times Editorial Board, the Washington Post Editorial Board, and approximately 95% of Supreme Court commentators and law professors (most of whom reside on the left) to take sides with Donald Trump and against her? Unless you have been on a remote desert island for the last week (with no internet service), you know the answer is by that Justice speaking out on a matter of national politics (in this case the upcoming election and Trump's potential to basically destroy both the Court and our country). Of course, Justice Ginsburg walked back the comments yesterday by saying that they were "ill-advised," that she "regretted making them" and that judges should avoid "commenting on a candidate for public office."

The Times said she shouldn't have flung herself "into the mosh pit" of national politics while progressive legal scholars like my friend Professor Steve Sanders warned that Supreme Court Justices should "never wrestle with a pig because you only get dirty and the pig enjoys it." More seriously, Sanders was worried that the judiciary needs to be independent to perform its job, and that judges must at least appear to remain above normal politics; otherwise the people will lose faith in their decisions.

There is a judicial code of conduct that clearly states federal judges shouldn't make public comments supporting or opposing candidates for elected office. These rules, however, according to both the Chief Justice of the United States and the American Bar Association, do not apply to the Supreme Court. One lesson of this entire episode is that, as I've written here before, the Court needs to formally adopt its own binding Code of Ethics. Right now, the Justices stand above the law when it comes to their ethical responsibilities. That is a bad example for our nation's highest Court to set.

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated."  Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well.

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. Revisiting two landmark Supreme Court cases, Bush v. Gore, and Texas v. Johnson, I think shows the dangerous Emperors-New-Clothes aspects of this argument.

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision? The Supreme Court is just not like other courts. It has the last word, it is not bound by precedent, and its decisions are national in scope. Other than the requirement that an injured plaintiff bring a suit to the Court, it is in fact a national veto council in constitutional law cases. Why keep pretending that it is not?

Justice Scalia was fond of citing Texas v. Johnson, where the Court struck down a Texas law forbidding flag burning, for the proposition that he would follow the law wherever it leads, not his own personal values because, even though he joined the majority, if he "were King [he] would send the guy to jail."

This argument is silly. Justice Scalia joined the majority not because the law made him do it but because, all things considered, he would rather live in a country where flag burning is legal because speech values are that important to him. Justice Stevens and three other Justices reached exactly the opposite conclusion in dissent. Had the Justices been sitting on an official veto council rather than a "court of law" I'm pretty sure the votes of each Justice would have been exactly the same.

So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. We live under a written Constitution which needs to be enforced. Parts of that Constitution smack of law and are easily enforced (two Senators from every state, President has to be 35, etc.,) and parts sound more like broad aspirations (guarantees of freedom of speech and religion, equal protection, due process, etc.). The Justices are not bound by prior cases and are free to impose their values writ large as they see fit. Contrary to Professors Gillers and Sanders, I think the American people would accept their decisions even if the Justices were open and transparent about the reasons, all the reasons, for their decisions. And, if I'm wrong, shouldn't the "public" decide?

I wish Justice Ginsburg had not apologized because I think honesty and transparency are more important than illusions and myths.