I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups. While not unique on the Court, Ginsburg is something of recidivist in abandoning the long-standing avoidance of justices of political discussions. Indeed, justices previously avoided most public speeches where Ginsburg has readily embraced her public persona. Her latest comments occur on the eve of the start of the new term, a term with an array of major cases that arose from highly charged political conflicts over immigration, discrimination, and gun rights. In her latest comments, Ginsburg echoed comments by Hillary Clinton that sexism was a big part of Trump’s victory. It is precisely the type of political commentary that has cast a shadow over the credibility of the Court in earlier controversies.
I have long been a critic of Supreme Court justices embracing the era of what I have called “the celebrity justice.” Justices are increasingly appearing before highly ideological groups and inappropriately discussing thinly veiled political subjects or even pending issues. I have been equally critical of other justices, including the late Antonin Scalia, for such comments. She previously called President Trump a “faker.” Supreme Court Justice Ruth Bader Ginsburg has been a notable recidivist in this type of conduct and does not appear to be deterred by criticism that she is undermining the integrity of the Court. She is back at it with a new interview with the BBC. Even after criticism for earlier comments, Ginsburg continued to publicly discuss the unfortunate times brought about with Trump.
Ginsburg, 84, has taken subtle and not so subtle shots at Trump, including expressing how the US is “not experiencing the best of times.” She appeared to assure Democrats that the “pendulum” will swing back. In her appearance before an enthusiastic audience at New York City’s 92nd St. Y, Ginsburg responded to a question from CBS journalist Charlie Rose on whether she thought sexism played a role in the presidential election results. The right answer is to say that justices do not, and should not, hold forth on political issues. Ginsburg, again, dove right into the political waters and said that she has “no doubt that [sexism] did” play a role and added “There are so many things that might have been decisive. But that was a major, major factor.”
Hillary Clinton and her key aides have blamed the election in part on self-hating women who would not vote for Clinton — dismissing that women could have entirely independent judgment rejecting Clinton on the merits. Indeed recent polls show that Clinton would still lose to Trump despite his unpopularity with many voters. According to the New York Times, Clinton carried only 54 percent of the female vote against Donald Trump. However, nearly twice as many white women without college degrees voted for Trump than for Hillary and she basically broke almost even on college-educated white women (with Hillary taking 51 percent). Trump won the majority of white women at 53 percent. Clinton’s continued criticism of women as being self-haters was denounced recently as itself a sexist argument. In an interview with Vox, Clinton said white women just do what men tell them to do:
“All of a sudden, the husband turns to the wife, ‘I told you, she’s going to be in jail. You don’t wanna waste your vote.’ The boyfriend turns to the girlfriend and says, ‘She’s going to get locked up, don’t you hear? She’s going to get locked up. Instead of saying, ‘I’m taking a chance, I’m going to vote,’ it didn’t work.”
It is not hard to imagine what the response would have been to someone else dismissing female voters as just a bunch of clinging mindless voters following the directions of their men.
In the end however Clinton is a politician desperately trying to relieve herself of the primary responsibility losing to the least popular Republican ever to be elected in modern times. Ginsburg is a justice who is about to vote on issues that deeply divide this nation. With her continued refusal (despite prior expressions of regrets) from discussing politics, Ginsburg is undermining not only her own impressive legacy but the integrity of the Supreme Court.