Justice Ruth Bader Ginsburg doesn’t like Donald Trump. That one of the most liberal members of the U.S. Supreme Court feels this way isn’t a surprise to anyone. But what is surprising is the fact that she thinks herself entitled to tell the country that the presumptive Republican presidential nominee is so bad that it would make her think of moving to New Zealand. Yet as much as Ginsburg and Trump represent the opposite ends of the political spectrum, that line—which was just the most outrageous quote from a remarkably candid interview conducted by the justice with the New York Times published on their front page today—shows the two have more in common than we thought.
Ginsburg has evolved over the last 20 years from being just another lockstep liberal vote on the high court to something of a celebrity icon for left-wing women. The book and meme “Notorious RBG” illustrates how a staid octogenarian judge can be transformed into a pop culture star with a nickname that is a takeoff on the handle of slain rap singer. That Ginsburg was delighted with the adulation that has produced bobble head dolls and t-shirts is no secret, but it never occurred to me that it had gone to her head in quite this fashion until now.
By breaching convention and speaking out directly to, among other things, express an opinion about the unsuitability of one of the two major party presidential candidates–as well as to criticize the Senate for refusing to approve a fifth liberal justice to replace her late friend Antonin Scalia and to call for the court to overturn some of the decisions he helped write–Ginsburg has jumped the shark in a manner that no member of the Court has done in recent memory. Indeed, the only way to characterize her willingness to drop the cloak of impartiality that even the most ideological judges normally cling to is that she has, like Trump, begun to believe that her celebrity places her above the rules that normally govern the behavior of people in public life.
Let’s start by noting that Ginsburg had better hope that this year’s election doesn’t generate any legal actions that might find their way to the Supreme Court in the manner of Bush v. Gore. As unlikely as that might appear at the moment, should the Supremes have to untangle some legal mess resulting from the Trump-Clinton matchup, Ginsburg will be obligated to recuse herself since he has already declared the prospect of a Trump presidency to be so awful as to be unimaginable.
That’s a sentiment that a lot of Americans share, including many who don’t normally agree with Ginsburg on much. But whatever we may think of Trump, there is something profoundly unseemly about a member of the Supreme Court weighing in on the race like just another television talking head. We know a great deal about the political views of the justices from their written opinions or even comments during oral arguments. But the tradition of justices staying out of the political fray is a useful one. The distance they maintain from the hurly-burly of the day-to-day debate in the public square is useful since it allows them to focus on the legal principles that ought to decide cases rather than whether their decisions will be useful to the two major parties and their supporters. In theory, it should also reinforce the perception that the law and not the political implications of these decisions determine their votes. But by declaring herself in this fashion, Ginsburg is dragging an institution that must always worry about becoming politicized into crossing an unwritten line that should divide the realm of the law from that of partisanship.
In doing so, Ginsburg isn’t telling us anything new about her beliefs. But she is declaring that the “notorious” handle her rabid supporters have given her has gone to her head. No longer merely a respected liberal justice, Ginsburg seems to really think that she is so famous and loved that the rules don’t apply to her anymore. In other words, Ginsburg has become a mirror image of Trump, a man who also thinks she can say anything and get away with it. In his case, his scattershot opinions reflect a belief that his greatness and willingness to offend what he calls political correctness, but which is usually merely good taste and sense, gives him impunity to utter outrageous things. For Ginsburg, the quips about Trump and the scolding of Senate Republicans for exercising their right to withhold “consent” to a nomination to the court is similarly a manifestation of a belief that her celebrity and self-righteous faith in her own rectitude transcends the norms of judicial behavior.
Ginsburg’s fan base among the readership of the Times will cheer every word she utters. But they should realize that her desire to appeal to the mob in this manner is merely another manifestation of how the cultural norms they claim to uphold against Trump’s “barbarians” have already been demolished by their own side’s judicial star.
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