In a series of interviews, United States Supreme Court Associate Justice Ruth Bader Ginsburg called Republican presidential nominee Donald Trump “a faker,” criticized him for his inconsistency, and joked about moving to New Zealand if he is elected president. Her candor was met with backlash and she later apologized for her comments, calling them “ill-advised.” Despite Justice Ginsburg’s regrets, her comments attracted a storm of think pieces regarding the Court’s legitimacy.
Liberals and conservatives alike pounced on her comments: Trump called for her resignation, fellow liberal Justice Stephen Breyer passive-aggressively chided Justice Ginsburg for daring to express her opinion in public, and news outlets from The New York Times to The Washington Post to The Wall Street Journal ran op-eds about why Justice Ginsburg should be chastised for her behavior.
Yet it’s not about whether Justice Ginsburg should have said what she said, or whether she should or should not have apologized. Though there is certainly some merit to those debates, they are missing a crucial aspect of the Court. The real problem is that people seem to believe that justices should be neutral when in reality it’s the elected branches of government that have done everything in their power to ensure that the Court is anything but neutral.
Long before Justice Ginsburg said exactly what she thought about Trump, the executive and legislative branches have already damaged the Supreme Court. In fact, the damage to the Court is so entirely self-inflicted that it should be obvious to everyone, including the media, that Justice Ginsburg would be anti-Trump. Her public Court voting record and written opinions thoroughly hint to which party she supports and who she would vote for this election season. Faulting Justice Ginsburg for politicizing an already politicized Court is an example of that cyclical government hypocrisy.
If people think that Justice Ginsburg’s opinion further damaged an institution that has been historically legitimate, pure, and impartial until now, they are delusional. Of course, the Court tries to live up to its reputation as this haven of neutrality whose only allegiance is to the Constitution—typically, over half of its decisions are decided unanimously controversial cases have always been determined under the shadow of heavy political implications.
Dating back to Marbury v. Madison, the close intersection between the judiciary and politics is nothing new. From the outside, though, the Court is not a mediator that encourages compromise between warring parties, nor does it, as Chief Justice John Roberts seemingly believes, calls “balls and strikes.” The Court’s majority often, and boldly so, declares an ideological preference. That’s part of their job. And oftentimes, in the most controversial cases that receive the most media coverage, their options just happen to belong on opposite sides of the political spectrum.
For decades, presidents have been leveraging Supreme Court appointments as political ammunition. President Franklin Roosevelt packed the Court just so he could get his New Deal through. President Ronald Reagan obsessively strategized his Supreme Court appointments in hopes of shaping his presidential legacy. If we look at the Segal-Cover scores, which examine pre-confirmation newspaper editorials written about the nominated justices to measure qualifications and ideologies, we’ll notice that a nominated justice’s qualifications can range broadly per president; presidents, however, including George Bush’s infamous nomination of the progressively liberal Justice David Souter, consistently nominated justices who prima facie aligned with the president’s party ideology.
Further, consider the legislative branch that once confirmed the highly conservative Justice Antonin Scalia 98 to 0, and now can’t even bring themselves to even consider Justice Scalia’s replacement, the moderately liberal D.C. Circuit Court Chief Judge Merrick Garland. Since Justice Scalia’s death, Republicans have been exploiting the empty Court seat as political leverage—an insult to the Constitution, the Supreme Court, and the life of a man who has done nothing but champion their political ideologies. Disregarding the implications of an eight-member Court, the Republicans have taken the empty seat hostage in hopes that a Republican president would get elected and subsequently appoint a conservative justice. If the Republicans want to embrace their antics, they have to understand their actions ultimately do not advocate for a more impartial Court.
Pundits and politicians can argue that the Court shouldn’t be inherently political, yet the appointment process for a Supreme Court justice has become overtly political. The president nominates the justice, and the Senate confirms the justice; the president and the Senate both advocate for justices who hold similar ideologies, and this has become more evident in recent years. The Court is at the mercy of the executive and legislative branches, and those branches have set up the Court to be the partisan disaster they now perceive it to be.
Justice Ginsburg is merely a product of an already politicized system and her comments should not be surprising to anyone who has followed the Court’s evolution. The other branches are killing the Court of their dreams by furnishing it for their intensely political, ideological battles. In the process, they are dragging the Court down with them so much so that the Court’s approval ratings have decreased in double-digits during the past decade. Soon enough, the Court’s approval ratings may rival its government counterparts, and they will have the other branches to thank for their demise.
Once popular with the people, the Court’s most basic traditions have drawn criticism: the ban on cameras in the Court (though recorded audio is readily available online) and its lifetime tenures. However, it’s hard to believe that those are actual problems if it was not for its perceived partisanship as it is the Court’s decisions on the most controversial issues of their time stir that ideological divide. What once felt like an intellectual incubator that the people didn’t understand, yet willingly accepted, now eerily feels like a chess piece for partisan political wars.
If the pundits believe that Justice Ginsburg should recuse herself from future Trump-related cases (if it comes to this) because she publicly denounced Trump, her ideological opposite, we might as well push that logic a bit further. If haters need to recuse themselves, then the supporters should do so as well. Perhaps justices should recuse themselves whenever their appointing president’s agenda is on the line. I mean, why else would the president have appointed them, if not for similar ideologies? As follows, President Barack Obama’s appointees Justices Elena Kagan and Sonia Sotomayor should recuse themselves from Affordable Care Act cases as it’s a piece of legislation championed by a president who recommended them for the job. How about justices also stop voting in cases if the case is related to an issue they previously favored or opposed? If so, perhaps Justice Anthony Kennedy should have recused himself from Obergefell v. Hodges as his majority opinion from Romer v. Evans indicated a favorable bias toward gay rights. In fact, perhaps there shouldn’t be a Court at all because it will never be the impartial institution that people want it to be. The system won’t allow it; human nature won’t allow it.
When Justice Ginsburg apologized, she was likely pressured by people who still believed in the sanctity of the Court and felt that she had a part in preserving that sanctity. As the Court becomes more politicized, the farther away it will be from the elusive Platonic ideal of justice. However, this is not to say that the Court is pointless. The Court has a place in government, a place in politics. Politicians and pundits just need to understand that the politicizing of the Court is unavoidable and not blame justices for holding political opinions that defined the basis for their judicial appointment. Holding any political opinions at all comes with the territory. Unless the judiciary adopts a different appointment process, nothing in the political landscape allows room for the Court to be what it should be. After all, a conservative majority on the Court did determine the outcome of Bush v. Gore.
Because this is the Court the political forces have created: a Court with liberal and conservative justices who represent political ideologies from both sides of the spectrum. Justices were and are elected on the merits of their political beliefs; there is no escaping this. Justice Ginsburg was being consistent, which is the most under-valued quality at play here. Voters and politicians have politicized the issues that win or lose elections, and Justice Ginsburg has made a career out of favoring and opposing those issues, being fully aware of the political implications. In any case, it’s silly to treat her opinions on a presidential candidate any differently.