In recent days, Justice Ruth Bader Ginsburg offered some very candid remarks about the presumptive Republican nominee Donald Trump. She noted, quite correctly, that she could not imagine what the country would be with Trump as president. She called him inconsistent, “a faker,” and egotistical. She joked that her late husband would have wanted to move to New Zealand if Trump were elected.
Nothing about the substance of these comments should strike us as odd or misconceived. Yes, Trump is inconsistent. Yes, he is a “faker.” And yes, he has an outsized ego. Further, few of us can imagine what the country would be like under a Trump presidency. And many of us might consider moving to New Zealand after the election. But what rankled so many people was the source of these comments. Justice Ginsburg was out of line, or so the reaction goes. Her comments were “understandable but injudicious.” As a Supreme Court Justice, she must not enter political debates, nor may she compromise our perception of justices as constitutional animals who reside outside the world of politics. Justice Ginsburg caved by the end of last week, and offered a half-hearted apology.
For the life of me, I cannot understand why she would have to do that.
There is something intriguing (and even interesting) about Ginsburg’s comments and the immediate reaction that ensued. To be sure, we could say that Justice Ginsburg violated no laws or rules of ethics. We could also say that she is on the side of history and John Stuart Mill: this is not new, as justices have campaigned before, and more speech is always better. We could even say that she wouldn’t have to recuse herself in a future hypothetical case involving Trump. We could go even further: Trump is no ordinary candidate; these are not ordinary times; and Ginsburg did a very courageous thing.
All these arguments remain at the margins of a much more important debate. How did we end up in a place where the Supreme Court can decide presidential elections on purely political grounds, thrust itself into the most pressing questions of our day, take sides in policy debates and issue opinions that need not make any sense whatsoever (I am looking at you, Shelby County v. Holder) and yet we stand back and defend a myth of the justices as apolitical creatures? In other words, how did we arrive at a place in our constitutional history where the Court can neuter the Voting Rights Act on specious legal grounds, take up continuous challenges to the Affordable Care Act, and deadlock over President Obama’s immigration directive on ideological grounds, yet suffer no apparent damage, constitutional, political or otherwise?
In this vein, I cannot help but ask, whatever happened to the countermajoritarian critique that so attracted conservatives scholars and pundits in the 1960’s? The difficulty was not as difficult as it once appeared, is it?
What we need, instead of opprobrium against Justice Ginsburg, is an argument for why this is a Court worth defending. And no, vacuous rhetoric about the value of judicial independence will not do.
It is much harder than it sounds.