Tuesday, July 12, 2016

The Flap Over Justice Ginsburg's Interviews

Mark Tushnet

Here's the most important point about Justice Ginsburg's interviews: NORMS CHANGE (and probably do so in ways that are subject to serious analysis rather than instant punditry). I'm working from memory here, so I'm sure I'll make (I hope) small mistakes. As New Dealers were developing the Social Security system, Louis Brandeis suggested to Frances Perkins that the statute should rely on the power to tax, not the commerce clause. Chief Justices Vinson and Rehnquist had regular poker games with power players in Washington politics. Harlan Fiske Stone regularly commented on contemporary politics in his letters to friends, and sometimes dropped broad hints about the Court's deliberations in recently decided cases. Willis Van Devanter wrote his sister that FDR's declaration of a "bank holiday" at the beginning of FDR's term was "courageous," although it was something of a pain in the neck for his mother, who couldn't deposit the monthly check Van Devanter sent her. Some of these actions would, I think, be regarded as quite inappropriate today.

Of course all these are "distinguishable" from Justice Ginsburg's interviews. The interviews were "on the record," and available to the public. Most of what I've described -- and more -- were private comments, some made to Washington insiders as what we would today describe as "leaks." (For myself, I think that disclosures of Justices' views on politics to insiders are -- today -- more pernicious than on-the-record comments; and I'm reasonably confident that such disclosures are common, around the dinner table in the Washington insider circuit.) All, though, demonstrate that the Justices have views about policy and politics (surprise, surprise!). Perhaps what we're seeing in Justice Ginsburg's interviews (and in some of Justice Scalia's on-the-record comments, too, is the beginning of a change in the governing norms,

To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases. I think that's why the question of Justice Ginsburg's recusal in a hypothetical Trump v. Clinton case resonates. But I have a  bridge to sell you if you think that the Justices (any of them) were above politics in the real Bush v. Gore, or in many recent cases. (Neil Seigel has a nice piece forthcoming on Justice Alito as a movement conservative, for example.)

What's interesting is why people who acknowledge that that Justices have political views that do influence their legal decision-making nonetheless think that there's something important about maintaining the facade that they don't. Perhaps for the Justices, it's an example of how hypocrisy is the tribute vice pays to virtue. But that won't work for outsiders -- except to the (unattractive) extent that the outsiders see themselves as somehow required to pay that same tribute.

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