Lyle Denniston, the National Constitution Center, constitutional literacy adviser, looks at how the constitutional lines between what judges do, as compared to what political candidates and members of Congress and occupants of the White House do, may not be entirely clear and precise.
THE STATEMENT AT ISSUE
“I am not aware of any Justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump's at all. But the soundness of [Justice Ruth Bader Ginsburg’s] concerns about Donald Trump has no bearing on whether it was proper for her to say what she said."
– Excerpt from a public comment on Tuesday by Edward Whelan, president of a conservative, Washington-based think tank, the Ethics and Public Policy Center, reacting to remarks that Justice Ginsburg made recently about this year’s presidential campaign. Her remarks came in three successive interviews with news reporters, for the Associated Press, The New York Times, and the CNN cable news network.
WE CHECKED THE CONSTITUTION, AND…
Nothing in the Constitution’s guarantees of free speech make political commentary out of bounds for judges, or for Supreme Court Justices. If their First Amendment rights are actually restricted at all, it is only when they say something that shows they would be (or would be seen to be) biased about how they would decide a present or future lawsuit.
But, whatever the ethical rules provide, most judges feel restrained about saying things that might suggest that they are trying to influence how voters react to politics or to candidates. This is not merely a matter of “political correctness.” It has more to do with public sentiments about how judges and Justices should do their jobs while staying above the fevered turmoil of politics as it is sometimes practiced in America.
The people of America are not at all squeamish about holding strong views and making strong statements about politics and political candidates, but they do seem to be squeamish about having judges do the same.
A long time ago, in 1901, a fictional comic character, a Chicago bartender named “Mr. Dooley” (created by writer Peter Finley Dunne), famously commented that the Supreme Court “follows the election returns.” By that, Mr. Dooley seemed to be saying, the Justices – at least some of the time – try to conform their rulings to what they think will be popular with the public. The quotation has some truth to it, no doubt, but it was at the time and still is a negative commentary on judicial manners.
So it is that Justice Ruth Bader Ginsburg, who has long had a habit of speaking her mind quite freely outside of her judicial duties, has been drawing some heavy criticism for her reaction to the presidential candidacy of Republican Donald Trump. Indeed, as she was quoted from one news interview to the next over the past few days, her criticism escalated from fretting about the impact his election would have on the future of the country and of the Supreme Court, to the ultimate suggestion that he was “a faker” and that he should not be allowed to get by with refusing to publicly release his tax returns. (Note: Ginsburg later expressed regrets about making those comments.)
The criticism, of course, was that these comments amounted to an ethical breach. In a year when the presidential campaign had already taken on some truly bizarre characteristics, especially of rampant name-calling, the critics found it jarring that a member of the Supreme Court would add to the cacophony.
It should be said quickly in response that the reality is that the code of judicial ethics has never been understood by most members of the Supreme Court as actually binding on them. Over the years, most Justices have voluntarily sought to observe the ethical norms, but they have drawn the line at having those enforced against them. They have done so as a matter of principle: the Founders intended the Supreme Court to be truly independent. The Constitution provides the only form of punishment if they stray too far from what the political branches of the government want or believe to be proper: the congressional power of impeachment.
But the risk that a Justice takes in stepping into popular political discourse is nurturing the idea that they, too, are immersed in politics, that they make judicial decisions according to their own political preferences. That is a corrosive perception about the court and its members, and it can make it harder for the public to accept when the Justices do reach decisions that are deeply controversial.
Right now, for example, the Republican leaders of the U.S. Senate are refusing to move forward to review a nomination of a new Justice, and the main argument that they have been making for doing so is that the Supreme Court has been making politically-driven decisions, so the public should have a chance – at the polling stations this November – to decide whether they want to endorse or reject that kind of judging.
Unfortunately, the Supreme Court still has to deal with the lingering suspicion that it directly engaged in political maneuvering when, in 2000, it actually decided the outcome of the presidential election by clearing the way to the White House for George W. Bush over Al Gore. Whatever legal reasons the Court gave for that outcome, it is remembered by many as a pure political choice.
Justice Ginsburg was a dissenter from that decision. Although she and her colleagues in dissent had genuine legal and constitutional objections to what the majority had decided, it has been too easy for critics to suggest that they were as politically motivated as was the majority. That view of the outcome may be well off the mark, but its continuing existence serves as a reminder that the court can get too close to politics, and may well pay a price in public respect when it does so.
The constitutional lines between what judges do, as compared to what political candidates and members of Congress and occupants of the White House do, may not be entirely clear and precise. But the public tends to believe that such lines do – or ought to – exist, and that judges should be very careful not to cross them.
