Thursday, July 14, 2016

Some takes on Justice Ginsburg and "Notorious RBG"

Mark Graber

On the one hand, people who are surprised that Justice Ruth Bader Ginsburg strongly opposes Donald Trump were probably even more shocked to learn there was gambling taking place in Rick’s Cafe in Casablana.

On the other hand, I suspect the Trump folks have far more reason to be pleased by Justice Ginsburg’s comments than the Clinton people.  Ginsburg’s comments beautifully fit the Trump narrative of an elite class willing to play politics to defeat the most authentic populist candidate of our generation.  If you liked Ginsburg’s comment, you were already committed to braving a tornado to vote for Clinton.

On the other hand, all judging is political.  The notion of an apolitical court is a myth that many of us have spent careers exposing.  By saying the obvious knowing she was saying the obvious, Ginsburg forces us to acknowledge that, contrary to Justice Jackson’s famous catechism in the second flag salute cases, the constitutional rights of all Americans will depend on the result of the next election.

On the other hand, claiming that judging is political is not particularly helpful for thinking about judicial behavior.  Making a syllabus is political in the sense that choosing one text over another involves a choice between conflicting values.  Nevertheless, we would not think that a constitutional law syllabus should declare that the purpose of this course is to demonstrate that Justice X correctly interprets the Constitution, while Justice Y just makes personal judgments (even if this describes constitutional law as taught by Frankfurter clerks).  Most people think that Justice Ginsburg probably should not wear a “Clinton for President” t-shirt to work, even though such attire might be appropriate for some other political actors.  The general norm on the court is that judges can be expected to advance the constitutional vision of their political sponsors, but not their personal political aspirations.  Ginsburg’s comments on Trump seem closer to the illegitimate personal endorsement side of this line than the legitimate constitutional principle side.

UPDATE [Justice Ginsburg has just acknowledged that her comments fell on the wrong side of this line]

On the other hand, as Mark Tushnet indicates, norms are changing.  Bush v. Gore (2000) demonstrates the Republicans on the Supreme Court are more interested in advancing the personal political aspirations of their political sponsors than acting on the basis of their constitutional principles—or at least that Republican judicial appointees have come to the conclusion that conservative constitutional visions are best advanced by judicial decisions that advance conservative political aspirations.  Justice Scalia and to a lesser extent Justice Thomas celebrated their personal connections with conservative political figures and political interest groups. Progressives should not engage in unilateral disarmament, particularly because no one is under any illusion as to the figures and interest groups Justice Ginsburg supports.  Her comments are best interpreted as an expression of the new normal.

On the other hand, the new normal is troubling.  Justices as celebrities are not a balm for a polarized polity.  When over time Justice Scalia morphed from serious conservative to celebrity, his opinions suggested he was channeling Don Rickels rather than John Marshall.  Perhaps justices will fail and fail consistently, but there may be some virtue even to the pretext that judicial opinions appeal to all reasoning persons and not simply to the justice’s political sponsors and their political allies.  At a time when the virtues of dignity seem to be in short supply, perhaps maintaining the dignity of the bench is not the worst choice for a justice.  In sharp contrast to Justice Ruth Bader Ginsburg, from this perspective, "Notorious" RBG is a poor role model for future justices and the American people, unless you believe the celebritization of politics which produces Sarah Palins and Donald Trumps is a welcomed development.

On the other hand, this may be an emergency to which the inherited norms of ordinary politics do not apply.  We rightly condemn the German judiciary for not stepping out of their role to condemn Hitler. Trump is not Hitler, even as he stokes the worse forms of bigotry in American politics, but he is also not a politician of which one might say is merely wrong within normal parameters (a phrase borrowed from conservatives supporting Clinton).  Ginsburg’s stepping out of her inherited role to condemn Trump highlights how this is no ordinary election. 

On the other hand, Ginsburg is likely to have numerous occasions to confront President Trump, should President Trump come to pass.  The history of political actors in constitutional democracies claiming that emergencies justify novel political actions is not a happy one.  The last thing one might want to communicate to the Trump people is that the United States is experiencing a political crisis that requires extraordinary action by our political leaders.  A constitutional democracy that cannot operate within its normal parameters to contain such threats as Trump (who is not an historical accident, but generated by systemic problems in the American constitutional order) is unlikely to be repaired through the use of emergency procedures.

On the other hand, perhaps progressives should not unilaterally disarm.  Laurence Tribe long ago pointed out that progressive professors who opposed speech restrictions on campus should not expect reciprocity in jurisdictions where conservatives rule.  That the left should do their best to operate the constitutional system within normal parameters is unlikely to inhibit Trump and his allies from taking emergency actions should they have the opportunity to do so.

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