It’s not that anything Ruth Bader Ginsburg said about Donald Trump was incorrect. The man is a “faker,” and his refusal to release his tax returns does violate established norms of presidential campaigns.
But just because it’s true doesn’t mean a Supreme Court justice should say it out loud.
The idea that the Supreme Court is above politics is a fiction, but it is a useful fiction that (ideally) helps give judicial decisions legitimacy in the eyes of the public, and therefore helps people to accept the law even when they disagree with it.
The preservation of that public impression is of course dependent on responsible actions from the court (a measure that is unfortunately subject to disagreements over which actions are “responsible”) but it’s also dependent on the justices reserving judgment where possible.
That is, there are a lot of controversies the justices don’t need to offer commentary on as part of doing their jobs, and it’s especially unnecessary for them to offer election punditry — because our country already has far more than enough of that.
Mark Joseph Stern writes in Slate that Ginsburg knows this, and the fact that she spoke out about Trump anyway signals that she “has decided to sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can.”
Maybe this is her calculation. But if so, it’s not a very good one. Where is the upside?
Bush v. Gore did a lot to damage the court’s legitimacy in the eyes of liberals, but at least the majority justices got a Republican administration out of it. In this case, there is no plausible gain for Ginsburg’s side. What voter, not already bothered by Trump’s evident unfitness for the presidency, is going to be moved by her comments?
What the comments have done is give Trump a valid complaint that a liberal Supreme Court justice is criticising him in a way that violates the court’s norms. And that would create pressure for her to recuse herself on cases related to him or his administration.
I have felt vaguely uncomfortable about the personality cult that has formed around Ginsburg over the last couple of years (including, in the most alarming case, a tattoo of her face) but until this week I couldn’t quite put my finger on why it bothered me. Now I’ve got it: Ginsburg’s fans are championing her in a way that is typical of a political figure, which she is, but which we’re supposed to pretend she isn’t.
These are undignified times, and having Donald Trump as a major party presidential nominee is an undignified position for our country. But plenty of people are already pointing that out. The best thing judges can do to preserve what dignity we have left is to maintain a reserved distance from the campaign, and do their best to pretend they are above it all.
This is an editorial. The opinions and conclusions expressed above are those of the author.
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