The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court Justice Ruth Bader Ginsburg now regrets what she calls her "ill-advised" comments about likely Republican presidential nominee Donald Trump. But there is still controversy about the propriety of her comments. Like Ginsburg, I think Trump is a menace to the republic. If anything, her criticisms of him are far too mild. Nonetheless, she was wrong to violate judicial norms by wading into partisan politics; not because those norms are absolute sacred principles, but because they should only be overriden in cases where doing so is the only way to achieve some great public good.
I. How Ginsburg Violated a Judicial Norm.
Supreme Court justices are not bound by formal ethical rules against partisan politicking that apply to lower court judges. But there is nonetheless a strong informal norm against such behavior on their part.
Some defenders of Ginsburg's comments argue that there is no problem here, because she was just revealing that which we already know. As Vox puts it, "[i]f you're honestly shocked to learn that Ginsburg would prefer Hillary Clinton to Trump, welcome to the world, you beautiful newborn baby." Every politically aware person knows that judges have political views, and that Ginsburg's views are deeply at odds with Trump's. But the point of the norm against partisan comments by judges is not to hide political views, but to help ensure their impartiality in deciding cases. A judge who can't keep her partisan impulses under control when making public statements, is also likely to have trouble doing so when deciding politically charged cases that come before the court. Detachment from partisan politics helps promote objectivity in legal decision-making, even if such detachment and objectivity are never going to be perfect.
Erwin Chemerinsky, dean of the UC Irvine School of Law argues that Ginsburg has a First Amendment right to attack Trump. He may well be right about that. But the fact that Ginsburg has a constitutional right to say what she said does not mean she was necessarily justified in doing so. It just means that the government is constitutionally barred from punishing her for her speech. Trump himself has a constitutional right to make bigoted, xenophobic, and misogynistic statements. That does not mean he is justified in doing so. While Ginsburg's violation of political norms wasn't nearly as egregious as Trump's, the fact that she had a right to say what she said, does not make it right for her to do so.
II. Was Ginsburg Justified by the Extraordinary Circumstances of the 2016 Election?
A much better defense of Ginsburg's action is Paul Butler's argument that the danger posed by Trump justifies violating norms that apply to more conventional candidates. I have a lot of sympathy for that position.
Norms of judicial conduct—like other social norms—are not absolute principles of morality that can never be outweighed by opposing considerations. If, for example, a violation of such norms were the only way to keep Nazis or communists from coming to power, it would be entirely excusable. Indeed, it would be wrong not to violate the norm in such a situation.
While Trump is not as bad as the Nazis and communists, he is a truly horrendous candidate nonetheless. As Butler points out, his agenda poses a serious threat to our onstitutional values, and is also far worse than that of more conventional presidential candidates in other ways. A man who plans to massacre civilians, deport millions of people (including thousands of children who have never lived in any other country) and systematically undermine important constitutional principles , should not be treated as if he were just any other politician. For that reason, I myself have advocated taking unusual action to prevent him from getting to the White House, such as denying him the GOP nomination despite the fact that he won a plurality of the primary vote.
But if you're going to violate a sound political norm in order to prevent some unusually awful outcome, there should be at least a substantial likelihood that your actions will actually achieve the desired end. Otherwise, you will end up weakening a beneficial norm without creating any compensating benefit that is worth the cost.
In this case, it's pretty obvious that Ginsburg's comments are highly unlikely to make any difference to Trump's prospects. The sort of people likely to be swayed by Ginsburg's denunciation of Trump as a "faker" who should release his tax returns, are almost certainly already opposed to him.
If Ginsburg was going to violate norms to go after Trump, she should at least have attacked him on less anodyne grounds. The problem with Trump is not that he is a "faker," but that he may well be a completely genuine advocate of a genuinely evil agenda. If he were merely a con artist, he would actually be less dangerous (and, in that respect, little different from any number of other politicians). Trump's failure to release his tax returns is one of his less egregious sins, and might even be defensible on privacy grounds.
Instead of focusing on such relative trivialities, Ginsburg could instead have explained why Trump poses a serious threat to constitutional rights and structural limitations on government power, and why his appeals to bigotry and xenophobia fall outside the bounds of normal political discourse. She could have commented on these dangers of Trump's candidacy in a thoughtful way that drew on her extensive knowledge of constitutional history, and her many years of experience with issues of racial, ethnic, and sex discrimination. Furthermore, she could have explicitly recognized that her comments violate standard judicial norms, and then explained why she nonetheless thought she had to speak out, given the extraordinary menace of a Trump presidency.
Such a statement still probably would not have made much difference to Trump's prospects. But it might at least have been a worthwhile contribution to public discourse. Sadly, the same can't be said for the "ill-advised" comments Justice Ginsburg actually made about Trump.