Political judgment is part of constitutional law. Ask the Founding Fathers.
Doesn’t everyone have an outspoken Jewish grandmother? That was my thought on reading the indignant commentary on Justice Ruth Bader Ginsburg’s unflattering assessment of Donald Trump in an interview with the New York Times.
To put the point more seriously, there’s nothing wrong with a sitting Supreme Court justice expressing her personal political views when they don’t implicate any case that’s currently before the court.
Justices aren’t priests — and the myth that they are is bad for democracy and constitutional law. If a justice chooses to open up, the skies won’t fall. The 83-year-old Ginsburg’s rigorous ethical reputation will remain intact. And the legitimacy of the court will not be harmed.
Don’t let the black robes fool you. Nothing in the Constitution – which by the way also says nothing about robes — demands that the justices be nonpartisan, or even pretend to be.
John Marshall, the greatest Chief Justice, served as John Adams’s secretary of state at the same time that he was chief justice. The Constitution says you can’t be in Congress and also work for the executive branch. But it doesn’t demand a similar separation for justices.
Sure, Marshall’s dual role, which ended after Thomas Jefferson defeated Adams and became president in 1801, would be unthinkable today. But it’s good proof that the Founders’ generation, at least, wasn’t obsessed with the idea that justices have to be outside the reach of politics.
Indeed, Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.
Two of his most revered opinions, Marbury v. Madison andMcCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.
In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.
Turning to the present, a judge shouldn’t announce her views about the case pending before her court. But there’s no Trump-related case before the justices now. And any case arising during a Trump presidency would be likely to involve the executive branch, not Trump personally.
I suppose I can imagine (although God forbid it) a case of Bush v. Gore II, the sequel, in which Ginsburg might be called upon to decide the fate of the presidency between Trump and Hillary Clinton. In that unlikely event, Trump could argue that Ginsburg’s comments mean she should recuse herself. That would be a plausible argument. But under the Supreme Court’s rules, it would remain up to Ginsburg to decide. She can cross that bridge if she comes to it. It would seem that she’s not that worried about it.
The arguments against Ginsburg’s candor almost all come down to the idea that she should have respected propriety and upheld the myth of judicial neutrality. But who, exactly, believes in that myth in the year 2016? It’s been 16 years since Bush v. Gore killed off any vestiges that might have existed.
Since then, the justices’ individual and collective reputations haven’t declined. The court remains legitimate in the eyes of the public.
That’s because the public understands that hard cases in constitutional law inevitably involve judgments of political morality. This term, the court ruled on affirmative action and abortion rights, two issues where, to put it bluntly, the Constitution alone doesn’t provide a definitive answer. The public understands that Justice Anthony Kennedy’s views and beliefs determined the outcome in both cases.
So there’s no harm to the court — or to Ginsburg — in acknowledging that she’s worried by Trump and what he stands for.
It’s true that if the tables were turned, Democrats would be upset about pro-Republican remarks by conservative justices. But they would be wrong. Life tenure guarantees independence, not neutrality.
If Ginsburg’s comments help put to rest the myth that the justices are uninterested in politics and unaffected by it, that’s good. A strong democracy rests on a correct understanding of its institutions — not myths that no one has ever really believed, anyway.
~Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University.