an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Some takes on Justice Ginsburg and "Notorious RBG"
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
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.