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 has repeatedly crossed the line of traditional public speaking in discussing political controversies, pending issues before the Court, and even criticizing the President. Despite repeated controversies in speaking publicly on political issues, Ginsburg remains undeterred. Earlier this year, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. This week, Ginsburg commented on the merits of President Donald Trump’s call for a review of the Supreme Court and even criticized senators who have made public statements about the impeachment.
Indeed, the most ironic part of her commentary was Ginsburg noting how inappropriate it is for senators to be discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” That raises a rather uncomfortable question as to what Ginsburg was doing in that very interview.
In discussing these issues with the BBC’s Razia Iqbal, Ginsburg commented on Trump’s desire for a review of the basis for impeachment. She dismissed the idea and noted “The president is not a lawyer, he’s not law trained.” The Court just took a case with potential bearing on the impeachment and particularly the article of obstruction of Congress. For Ginsburg to make any comments on the issue is wildly inappropriate.
She then added criticism of Senate Majority Leader Mitch McConnell and other senators who have discussed their views of the merits: “Well if a judge said that, a judge would be disqualified from sitting on the case.”
Some of us have raised concerns over such comments, but we are not members of the Supreme Court.
However, Ginsburg was not done. She turned to abortion and declared “I think society needs to be more active on this issue. And the truth is that with all these restrictive laws, the only people who are being restricted are poor women. They normally can’t pay a plane fare or the bus fare, they can’t afford to take days off of work to go.”
That is not just direct commentary on political and legal issues but a direction to what people should do on a political issue. It is facially inappropriate and the media would not be so silent if another justice like Samual Alito was advising pro-life forces on what they needed to do. Ginsburg was also discussing disparate impact issues on abortion services — an issue that has come before the Court and is likely to be before the Court again.
It was an ironic moment for the justice who is credited with the “Ginsburg Rule” where she refused to answer questions during confirmation that might be raised in cases before her. I have been critical of that rule. However, after being confirmed, Ginsburg regularly discussed the issues that she declined to discuss in the confirmation.
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.” Ginsburg remains a notable recidivist in this type of conduct.
It would not seem much to ask for justices to avoid commenting on politics while on the Court. These justices are allowed to sit on a court of nine. The price of that ticket should be utter neutrality in politics. Instead, Ginsburg appears to relish her public persona.
While Ginsburg previously apologized for her past political commentary as “ill-advised,” it is equally ill-informed. Yet, after the election, Clinton alternatively blamed sexism, racism, self-hating women, domineering boyfriends, Russian hackers, Bernie Sanders, and of course, James Comey.
In the end, it does not matter if Ginsburg is right or wrong. Her continuing discussion of political issues out of the Court undermines both the Court and her legacy.