Sorry, Justice Ginsburg, but those comments about a candidate whose legal interests might well come before the Court this year were waaaay over the line [Dan Drezner; Bloomberg View editorial; Orin Kerr (“cringe-inducing”)] “In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments.” [Jonathan Adler, more (the Justice deserves commendation for ensuring that the Court will consist of only 7 non-recused Justices, the better to speak with a clear majority voice, in case Donald Trump figures in a disputed election)] Yet more: Bob Fredericks, New York Post (thanks for quote). Some contrary views: Profs. Erwin Chemerinsky and Paul Butler, quoted in the ABA Journal; but note this from Prof. Jeff Pojanowski re: Prof. Chemerinsky’s views in 2014 (link fixed now).
More, Steve Lubet: “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.”
Update: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” [Washington Post]
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It’s not Ginsburg’s only bit of intemperance. Judge Kermit Bye compared Missouri’s execution procedures to a “high school science experiment” in a dissent on a stay motion. In casting a vote to stay the execution, Ginsburg cited, with approval, Bye’s dissent.
I”d say that there are significant differences between intemperance in a decision/dissent and intemperate public statements towards a potential party to future cases.
I didn’t say that there weren’t differences. Just that her appalling comments aren’t really out of character.
I don’t get the outrage. She’s a Democrat, and we’re supposed to pretend we didn’t know that? And that, like any thoughtful Democrat, she’s not just rooting for her team, but doing it for a reason, namely that she disagrees with the other side? Why am I supposed to be shocked by this?
Anybody who paid any attention to the Supreme Court – or even knew who was on it – could have predicted the Bush v. Gore split in advance. So why are we supposed to pretend that these people were impartially weighing the legal issues, and coincidentally all happened to come down on the political side that we all knew they were on? The fact that the Supreme Court has people on it, and that those people have political opinions, is news to nobody. What’s the fuss?
Essentially, what’s the sense in pretending? If you give these folks public policy questions on which to be our final arbiters, you should expect a public policy answer.
Do we really want a judiciary that is so good at concealing its biases that it has plausible deniability while carrying out a political agenda? That’s a threat to the rule of law! If we allow “sit there until the noise stops and then say what you were going to do anyway” to be the coping strategy for judges, people will get the feeling – accurately – that the justice system won’t listen to them, and is there to do whatever it as an institution can get away with. It’s not a long way from there to believing that the system is illegitimate. Why would it be legitimate, if it is actively trying to deceive you and force you to play along? Why, indeed, should you respect someone who lies to you and tries to cover it up?
Let’s not go there.
Well, Stewart, first and foremost, there are the rules. Yes, they are soft for SCOTUS, but nonetheless, those whose job it is to create rules ought to be good at following them. She has broken the norms of behavior. And it’s a problem.
Second, do we really want partisan cheerleading from judges, who are supposed to be neutral? How is anyone supposed to take seriously their opinions? Yes, judges have political views–but a concession to reality doesn’t mean that we just have a free-for-all. HS kids engage in sexual activity–does that mean we want them flaunting the behavior?
Third, the Bush v. Gore thing is a complete cheap shot. Was the 7-2 majority on the EPC issue (why that wasn’t 9-0 given the precedent is beyond me), and no one really, on the merits had a huge problem with the “you can’t change the rules mid-stream” opinion either. In other words, no one really had a problem with the actual legal reasoning reversing SCOFLA, but rather the prudential concerns about taking the case (which was weak–really, were we going to let the vote-counters in Palm Beach County decide the election?) and the remedy. But the remedy was eminently justifiable. (And one thing that Dems don’t like to talk about is that the end of the litigation meant that the military vote issue, which was a stick of dynamite, wasn’t going to get aired, and the Dems really played dirty on that one.)
No one is suggesting that people shouldn’t follow rules. Discussions of public policy are about what rules should exist; reformers aren’t automatically anarchists.
I’d prefer partisan cheerleading from judges, who we know are partisan even when they’re pretending they aren’t, to enforced silence – precisely because thinking people are not neutral on issues. Enforced silence gets you nowhere; that should be Lesson A-1 of the 60s. Hold the lid down on that pressure cooker long enough and it will blow. The results will be much worse than if you just let it out from the beginning. (BTW – when I went to high school, not all that long ago and in an urban school, people were fairly and sometimes very open about that stuff, and it turned out that about 10 people out of 500 were doing anything more than handholding. The rest of us generally regarded them as taking a monumentally stupid risk, not only with their physical health, but with their emotional health, too – and we didn’t hold back our opinion either. Had that information not been available, a few loud people could have dominated the discussion, created marketing buzz, and convinced the larger group that “everybody does it.” With that information, we all knew these people were full of it. See? Transparency works.)
Bush v. Gore is the only example of a Supreme Court decision effectively deciding a US presidential election. If one is considering the possibility of it happening again, why not look to the only time it’s happened before? Your point about the merits of the case vs. whether they should take it is exactly my point: on the legal issue, it was lopsided, but on the *opinion* of whether the case was any of their business or worth their time – where they could act purely politically – the split was purely political.
Stewart, Ginsburg’s commentary broke the norms of how Supreme Court Justices are supposed to act. That’s a problem no matter how you slice it—you argue for a change in the norms, but until that happens, the existing norms/rules are supposed to be followed–especially by those who expect that their decisions will be followed faithfully.
It’s bad enough that the Supreme Court liberals (and Kennedy) routinely blow off well-settled rules about stays of execution and when they should be granted or grant capital murderers like Maples the ability to change arguments on appeal after losing a judgment below, but Ginsburg’s naked partisanship is really inappropriate.
As for Bush v. Gore, you are contentious. I don’t make your point. Actually, I don’t see, for the life of me, how SCOTUS should not have taken the case, so I think that those who think that it shouldn’t are the partisan ones. The case clearly was of national importance, involved two federal issues (Article II and EPC) and was clearly decided wrongly by SCOFLA. The only real counterargument to that is the optics—but the optics would have been equally bad had SCOTUS allowed SCOFLA to blow off EPC, and really all the optics argument is–basically that the Court should not have had the courage to do what is unquestionably its duty.
I think when she moves out of the country, the issue of recusal will sort itself out.
Bob
She’s not moving anywhere, Bob. If Trump makes it into the White House, bet you a dollar she dies on the bench in an attempt to eke out another 4 years. She will suddenly become the very imprimatur of judicial restraint and impartiality.
I kind of like the idea of 7 non-recused Justices, at least it won’t be a tie.
“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
She has no need to be more careful. Her opinion is out there and it isn’t going away. It was a very sly bit of campaigning for Sir Hillary on her part.