I have long criticized Supreme Court Justice Ruth Bader Ginsburg for making comments on political issues to liberal and academic groups. While not unique on the Court in what I have called the era of “celebrity justices”, Ginsburg is something of recidivist in abandoning the long-standing avoidance of political discussions by justices as well as issues that are likely to come before the Court. Despite repeated controversies in speaking publicly on political issues, Ginsburg is clearly undeterred. This week, Ginsburg tripped both wires in discussing a matter in litigation and heading toward the Court while encouraging what would be a political campaign for a new constitutional amendment. As we have discussed, there is currently litigation over whether the Equal Rights Amendment was ratified by the recent vote in Virginia. Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement. Both statements were inappropriate, but the statement on the status of the amendment was wildly at odds with standards of judicial restraint and ethics.
What is interesting is that Ginsburg was prompted to delve into this political question by a fellow jurist. Judge M. Margaret McKeown of the 9th Circuit Court of Appeals, who asked whether there would ever be an Equal Rights Amendment on the federal level. Ginsburg responded by saying that ERA was expired (the issue currently before the federal courts) and “there is too much controversy about late comers” like Virginia. She declared that Virginia’s move came “long after the deadline passed.” She then added “I would like to see a new beginning. I’d like it to start over.”
The impact was immediate as blogs discussed how to carry out the advice. After all, they just received an effective ruling on the merits of the litigation without a single argument being heard by the Court. I happen to agree with Ginsburg’s view of the expiration of the ERA, but the issue is one of propriety not accuracy.
Such comments have long thrilled admirers, but those same individuals would likely be aggrieved if conservative justices start to give advice on political or legal campaign or issues moving toward the Court. Indeed, I criticized conservatives justices for such comments in the past. Yet, the clear impropriety of such comments are ignored in the media which breathlessly report such comments. A justice is not some oracle who gives advisory opinions or political directions to the faithful. Indeed, a justice should not have a “base” or constituency.
There is an incredible irony in Ginsburg’s repeated comments on politics and legal issues. She is 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.
Obviously, 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. In a speech in 2017, Ginsburg held forth on the politics of the presidential element and, despite criticism, she did so again in 2018, including her statement that sexist voters prevented Hillary Clinton from being elected president. Ginsburg has shown open hostility toward President Trump and continued to make improper public comments despite repeated objections about the impact of her conduct on the Court. Ginsburg has called Trump “a faker” who “has no consistency about him.” She has said that “I can’t imagine what the country would be with Donald Trump as our president.” This led to a letter demanding her recusal from cases (which she refused to do).
While I recognize the iconic status of Justice Ginsburg, this has nothing to do with her extraordinary legacy as a jurist on the Court. It concerns her continued lack of restraint and judgment off the bench. The fact is that, if she were a lower court judge, some of these past comments would have triggered serious judicial ethics issues. However, she is one of nine and thus supreme in the view of the Court in matters of legal ethics. I have previously argued against this position but Congress has done little to challenge it. So, Ginsburg will hear the case and the ethical objections will be treated as mere suggestions to a court that has shown both total discretion and disdain in past controversies.
I truly have a deep respect for Ginsburg in terms of her cases and jurisprudence. As with Scalia, I remain baffled by this reckless and cavalier attitude toward public speeches and commentary. This should not be an ideological matter. All lawyers and jurists and citizens should object to such public commentary, particularly on an issue being litigated in the federal courts.