Ed Whelan has offered a “limited defense” of Justice Ginsburg’s rather unbuttoned interview with Adam Liptak of the New York Times. I’d like to say more in favor of the “Notorious RGB,” along the lines of what Ed said in Part 2 of his comments.
First, Supreme Court justices historically have been political animals. They normally have had careers in elected or appointed positions in government, with all the partisan affiliations that come therewith, or have been activists or even academics of known partisan or ideological leanings. That Justice Ginsburg holds the opinions she holds can be no surprise to anyone, given the whole course of her life. The only surprise is that she uttered them to a reporter for publication. She did not rail from the bench about politics (like Samuel Chase), and she is not about to resign from the Court to run for president (like Charles Evans Hughes), though there might be Democrats who’d love her to if she were 20 years younger. But unless there is a case like Bush v. Gore again—in which a ruling of the Court has a direct bearing on who becomes president—it is hard to see what sort of situation would call for her recusal over her negative comments about Donald Trump.
Second, justices most strongly signal how they feel about past decisions of the Court—including those that they might have an opportunity to revisit in the future—in the opinions they publish in their official capacity. Everyone knows what Justice Scalia thought of Roe v. Wade, because he told us in opinions he published as far back as 1989 and 1992. Justice Thomas joined Scalia’s 1992 Casey opinion, and has indicated his consistently dim view of Roe as recently as this past term. Likewise, Justice Scalia predicted in Lawrence v. Texas (2003) that same-sex marriage was on its way, given the logic of that decision, and there was no question even then what he thought of it as a proposition about constitutional meaning.
Justice Ginsburg told the Times that she would welcome the chance to overrule Citizens United, and to reconsider Heller v. D.C. Other than the venue in which she said it, how is this different from Justice Thomas’s remarking that “I remain fundamentally opposed to the Court’s abortion jurisprudence” in the Hellerstedt case, in which the parties did not even argue the question of the continued effect of Roe, Casey, etc.? As Vikram Amar noted in 2003, the justices “most often muse about legal questions not directly before them in written judicial opinions themselves”:
And yet no one in the world thinks that simply because a Justice in a published opinion has made clear in passing, say, that he does not agree with an earlier ruling and would overrule it when given a chance, that he is “biased” against that ruling—in the sense that he cannot participate in a case that comes up in which the continued vitality of that ruling is squarely presented. . . .
Thus, there is an odd anomaly: We seem to treat the recusal standard differently when a Justice’s potentially “biased” remarks appear on the CBS Evening News, than when they are excerpted from the U.S Reports by Linda Greenhouse (who covers the Court) in the New York Times.
Perhaps we should give Justice Ginsburg points for candor.
Yet there is a third point to be made here, similar to the one Ed has made already. Throughout this interview and another she gave to the AP last week, we can tell what she thinks about abortion (we mustn’t “deny a woman her right to choose”), and about the Senate’s alleged duty to consider the nomination of Judge Garland (That’s their job”), and about the stakes in the presidential election (“Kennedy is about to turn 80,” and “Breyer is going to turn 78”). We can even find out from Justice Ginsburg what she thinks Justice Scalia would have done in various cases this term had he lived, and what Justice Kagan would have done in the Texas affirmative action case. She is well practiced in the rhetoric of the Democratic party.
But nothing she is on record as saying to the Times or the AP would give you the first idea of what Ginsburg thinks about the law, or the Constitution. These things simply collapse into politics, and politics into ideology, in the universe she inhabits.
Perhaps here too we should give her points for candor. From legal realism to sociological jurisprudence to legal positivism to critical legal theory in the country’s law schools, and from judicial behavioralism to the “new institutionalism” in political science, the view that the law is simply the practice of politics by means of our least democratic and representative institutions has become conventional wisdom in the academy. Generations of scholars have learned that categories of jurisprudence are simply tools of power to be seized for “the cause” du jour, twisted this way and that until they will serve our immediate ideological purposes, no matter the long-term consequences for the rule of law or constitutionalism.
Justice Ginsburg is nothing if not au courant in these matters. Her recent interviews should be read as plain messages to her ideological soulmates in the liberal legal academy and elsewhere that she and they are on the same wavelength. They are about remaking the country. The Constitution is alternately a hindrance and a plaything.
There is nothing that should be surprising or shocking about what Justice Ginsburg has said. And for the most part I would not regard these interviews as grounds for recusal. But it is more than possible, it is probable, that for the record of her entire career on the Supreme Court, leading members of the founding generation would have regarded Ruth Bader Ginsburg as a candidate for impeachment. For sitting down with reporters and reminding us of her unabashedly ideological understanding of the judicial function, I’d like to thank her.