Ruth Bader Ginsburg has recently made the headlines by commenting on Donald Trump’s run for president. Her first comments seemed somewhat reluctant and unplanned:
I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president […] For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.
Later comments were much more direct:
He is a faker […] He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.
Trump’s response was somewhat expectable—he called her “incompetent”, her comments “dumb”, and for good measure added that she should resign. But Ginsburg didn’t merely draw Trump’s disapproval. Both the New York Times and the Washington Post published op-eds calling Ginsburg’s comments inappropriate. The Washington Post argued:
Politicization, real or perceived, undermines public faith in the impartiality of the courts. […] As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system.
The New York Times added that
[It is] baffling that Justice Ginsburg would choose to descend toward [Trump’s] level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.
The basic idea behind both op-eds is that judges should stay neutral on political matters. But is there such a duty? And what could justify it? This is clearly an interesting issue to which one would expect philosophers to contribute something. My hopes are a bit more moderate: to provide a brief review of what others have written about Ginsburg’s comments, and to order some of the comments made in a philosophically interesting way.
Some High-Flown Rhetoric
There are some bad arguments to make the case against Ginsburg, and both the Washington Post and the New York Times op-eds are instances of this. You could simply assert that judges have a role-based duty to stay neutral in politics—that such a duty is part of the way the system is designed, that it is entailed by the principle of the separation of powers, or the independence of the judiciary, or what have you. Mark Joseph Stern at Slate thinks that the matter is obvious:
There is really very little to debate about the ethics of Ginsburg’s comments. They were plainly a violation, the kind of partisan partiality that judicial ethics codes strive to prevent.
The most he gives in terms of elaboration is the following:
To be clear, what Ginsburg is doing right now—pushing her case against Trump through on-the-record interviews—is not just unethical; it’s dangerous. As a general rule, justices should refrain from commenting on politics, period. […] The independence of our judiciary—and just as critically, its appearance of impartiality—hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other.
But rhetorical appeal to such high-flown ideals just moves the question one level back: why should we accept those principles? More precisely, why should we accept that commitment to such principles entails an absolute prohibition that judges never make any type of political comments? We are given little in terms of an argument in these articles.
It’s not, of course, necessarily the task of a newspaper to argue its case at any greater depth. Appeals to political principles without deeper arguments for these principles have their place in politics. But over the long run, such relatively mindless invocations of principles obscures why we are committed to those principles.
A second unpromising argument would be to say that Ginsburg’s public comments somehow undermine her impartiality, and that she had a duty to remain impartial. The problem with this argument is that it’s not altogether clear why making her opinion public makes Ginsburg any more or less impartial. A conservative commentator, Rick Moran at American Thinker, notes this clearly:
The Supreme Court is political. The justices can read the polls as well as anyone, and it’s a fantasy to believe that their political biases – right and left – aren’t a part of their decision-making process. They are, after all, human and subject to the same emotions and prejudices as the rest of us.
Moran’s argument, however, then takes a rather bizarre turn:
To say they should rise above that is American folklore. The very good justices are able to hide their biases using sharp, clarifying legal arguments. But Ginsburg is making no attempt to hide anything. She is blatantly partisan and should either be impeached or forced to recuse herself when necessary.
Moran’s claim appears to be that Ginsburg’s mistake was not to be biased; but to make it public that she was biased. (Note that Moran doesn’t say that judges overcome their biases through sharp legal arguments, but that they hide them.) This is a curious claim. Perhaps Moran means to say that being transparent about the court’s biases undermines trust in it, an argument I turn to later. But if you accept that judges invariably have biases, it would seem better to be transparent about those biases rather than to hide them. Having them open in the public would invite public scrutiny, and diminish barriers between insiders (who know about the biases at any rate) and outsiders.
What strikes me as the right answer in this matter is given by Mark Tushnet, who dismisses the whole debate as a “flap”, and encourages his readers to note that “norms change”. He writes:
What’s interesting is why people who acknowledge that that [sic] Justices have political views that do influence their legal decision-making nonetheless think that there’s something important about maintaining the facade that they don’t. Perhaps for the Justices, it’s an example of how hypocrisy is the tribute vice pays to virtue.
What is more, much would depend on the precise nature of the public comments. Ginsburg’s comments express a general disdain for Trump. But it is not clear why this would make her incapable to decide a case of a possible Trump administration on its legal merits. To presume otherwise is to believe that a great legal mind like Ginsburg’s could not sufficiently supress dislike for a claimant in favour of objectivity.
The most interesting, and I think the best, argument is a type of outcome-oriented argument. Judges should abstain from publicly taking a stance on political issues, so we would argue, because doing so would undermine the long-run ability of the courts to fulfil their function, which is to resolve legal disagreements between people. For the courts to fulfil this function, they must be perceived as impartial and non-partisan; public political statements by judges undermines trust in the courts, which in the long run undermines their efficiency.
I agree with this line of argument because it fits with my wider thinking on legitimacy. I believe in a view which one can describe, broadly, as a type of instrumentalism about legitimacy:I deliberately do not write “consequentialism”. The view I am imagining accepts that people have rights, and that the aim political institutions ought to promote is justice, not aggregate well-being. we should design legal norms, and the legal system, such that desirable results are brought about—in particular, just results. There is nothing holy about the separation of powers, or the neutrality of the judiciary, if violating these principles can help us bring about a better society. (Not everything, of course, would be allowed in the pursuit of justice. But I take it that the neutrality of judges on political matters is not directly a matter of justice by itself.)
Still, it strikes me that a neutrality rule is useful to have. To see this, we can turn to Waldron’s argument for “normative positivism”. Waldron argues that the law—and we can now add, by analogy, the judges that apply it—should be neutral on justice, precisely because
law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law’s function to supersede.
As instrumentalists, we want a legal system which sets apart in its everyday operation disagreements about justice, precisely because this might be our best chance to promote, in the long run, justice in a society characterised by lasting disagreement.The analogy is a consequentialist who uses a non-consequentialist decision-procedure to achieve the best outcomes. This is a perplexing thought, but one which I think is correct in its broad outlines.
However, no rule inside an instrumentalist picture will be absolute. Every rule will allow for some exceptions, or otherwise we would start fetishizing the rules over the aims we wish to promote. Similarly, I don’t think that normative positivism, in its best version, would be water-tight: it would allow for justice concerns to sometimes take over. The trite example of Nazi Germany can once again be useful. We would not want judges in a country sliding into tyranny to continue to be silent on political issues. We would want them to use their social and political capital to take a public stance. They would even have a duty, as far as they can, to prevent injustice.
Furthermore, a plausible instrumentalism would allow for more exceptions than these very drastic cases. In short, if breaking a neutrality convention is likely to drastically improve our society’s long-run ability to achieve and promote justice, or is a good way to thwart a very clear and great danger to its ability to do so, then judges would be permitted—probably be even required!—to break such a convention.
The question, then, is simply whether Trump is an exception which is important enough that Ginsburg was justified in breaking a neutrality convention. Paul Butler answer the issue in the affirmative:
Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist – has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no.
Butler’s case is simple: Trump’s political views do not constitute business as usual.Stephen Griffin makes a similar argument here. Rather, they present a clear and great danger to some important values, such as the rule of law, justice, free and open public deliberation, and so on. This would be a good argument even if you reject that Trump is a fascist, or an anti-democrat, or some such.
Other presidents (Bush, Obama) and candidates (Clinton, Palin) are controversial. But arguably, an instrumentalist should see them as being within justifiable limits. If you’re an instrumentalist, you might think that an Obama or a Bush presidency set back the pursuit of justice in the short run. However, it seems improbable to think that either of these presidents or candidates would undermine the long-run ability of American political institutions to achieve justice. So it is unlikely that you would be permitted to violate, as a judge, a neutrality constraint in their case.
More could be said on what precisely the exceptions are that an instrumentalist should allow. We would also need to tell a more developed story of why political statements by judges would really undermine the efficiency of the court–many of the relevant empirical judgments are difficult to obtain, and I am somewhat sceptical whether comments like Ginsburg’s really have drastically negative effects on trust in the Supreme Court. Noah Feldman, for example, is very relaxed in this respect:
Justices aren’t priests — and the myth that they are is bad for democracy and constitutional law. If a justice chooses to open up, the skies won’t fall. The 83-year-old Ginsburg’s rigorous ethical reputation will remain intact. And the legitimacy of the court will not be harmed.
So there might be reasons to allow even more exceptions to the neutrality rule. But it strikes me that, however precisely you want to draw those boundaries, Trump’s case is a permissible exception.
A simple objection to this view is a kind of symmetry objection. Gerard Magliocca offers one:
Suppose that tomorrow Chief Justice Roberts gave an interview in which he said: “Hillary Clinton–what a liar! That private email server looked awfully fishy to me, and don’t even get me started about Whitewater. I hope I don’t have to swear her in come January.”
Would anyone applaud him for his “candor” or “courage?” Of course not. He would be rightly pilloried as a partisan hack. What Justice Ginsburg is saying about Donald Trump is no different and should be treated no differently, even though I agree with the substance of her comments.
The problem with this arguments is that it simply presupposes what needs to be shown: that Trump’s case is not exceptional. The simple answer to Magliocca’s claim is that, if Roberts were to make such comments about Hillary Clinton, then we should severely criticise him, and think that he acted wrongly. And we should think so precisely because, whatever you think about Hillary Clinton, her becoming president would not undermine the long-run ability of American institutions to pursue justice. On the other hand, Donald Trump becoming president would.
Perhaps Magliocca has a general slippery slope argument in mind. If we allow Ginsburg’s comments, then soon we can expect comments like Roberts’. And from there we might expect yet more political meddling from judges. Even if we think that Ginsburg’s intervention by itself was justifiable, this general development would be undesirable.
We should accept this as a possibility. But without some more concrete evidence or historical comparison, this slippery slope argument (like so many others) at most points out a possible risk. I find it difficult to think that Ginsburg’s comments about Trump—who is clearly perceived by almost anyone as an exceptional presidential nominee—would trigger a general politicization of the judiciary.
Perhaps the last, and most powerful, objection is that Ginsburg’s comments are unlikely to achieve much, while risking a lot. There are already enough people commenting, at length, negatively about Trump, and Ginsburg is unlikely to sway those who not already have a negative opinion about Trump. Ginsburg’s intervention gives Trump yet more press and attention, and (strangely) gives him, for once, the support of the New York Times and the Washington Post.
At the same time, we might argue, there is a real risk that long-term trust in the Supreme Court is undermined. What’s more, Ginsburg’s public opposition to Trump might diminish her effectiveness as an opponent of Trump if he were to become president, as she might have to recuse herself from some key judicial decisions. Overall, we might argue, Ginsburg should have erred on the side of caution.
It is extremely difficult to say what the long-run practical implications of Ginsburg’s comments are going to be. I can imagine almost any constellation of consequences—it could be very good or very bad, or perfectly neutral, once we take all expected consequences into account. Especially if Trump will lose the election in a landslide, her comments will retrospectively look unnecessary. Either way, an important distinction would be the following: even if Ginsburg wasn’t objectively right in making her comments (and no one is currently in a good position to make this judgment), at least it wasn’t subjectively wrong for her to make these comments.
This is hardly a conclusive overview of arguments one could give for or against Ginsburg publicly taking a stance. I have also limited myself to commentary in the press, and some academic blogs.
Overall, it strikes me that Ginsburg’s comments are likely defensible. For an instrumentalist like myself, high-flown rhetorical appeal to the “independence of the judiciary” will do little work. So we cannot help to look at the particulars of the case, in particular, at the nature of Trump’s candidacy. The horrifying prospect of the latter actually becoming president goes some way towards justifying Ginsburg’s comments.