Jus­tice Gins­burg’s dam­age to the Supreme Court

Cecil Whig - - OPINION - Ruth Marcus

WASH­ING­TON — Jus­tice Ruth Bader Gins­burg’s ad­mit­tedly “ill-ad­vised” re­marks about Don­ald Trump weren’t only bad for the jus­tice and her rep­u­ta­tion. They were bad for the Supreme Court and, con­se­quently, for the coun­try.

Gins­burg was cor­rect in her scathing as­sess­ment of Trump — and cor­rect to ex­press her “re­gret” for voic­ing it pub­licly. But the dam­age to the court’s im­age and rep­u­ta­tion is al­ready done.

The good news for the jus­tices is that their in­sti­tu­tion is held in higher re­gard, for what that’s worth, than the other two branches of govern­ment.

The bad news is that this sup­port is at an all-time low. Ac­cord­ing to polling last Septem­ber by the Pew Re­search Cen­ter, 42 per­cent of Amer­i­cans held an un­fa­vor­able view of the court, while 50 per­cent viewed it fa­vor­ably. By con­trast, in Jan­uary 1988, just 13 per­cent had an un­fa­vor­able view of the court, and 79 per­cent saw it fa­vor­ably.

Em­bed­ded in this de­clin­ing as­sess­ment is a sig­nif­i­cant par­ti­san di­vide: 38 per­cent of Repub­li­cans and Repub­li­can lean­ers viewed the court fa­vor­ably, com­pared with 64 per­cent of Democrats and Demo­cratic lean­ers. In­ter­est­ingly, not so long ago, this ide­o­log­i­cal gap was re­versed: in 2008, 80 per­cent of Repub­li­cans viewed the court pos­i­tively, ver­sus 64 per­cent of Democrats.

Why does this mat­ter? Why should the jus­tices care? Af­ter all, the court is em­pow­ered to say what the law is, whether or not the pub­lic is happy with its per­for­mance and its pro­nounce­ments. The jus­tices en­joy life ten­ure.

Yet stature and pub­lic ac­cep­tance mat­ter. The court has no in­de­pen­dent power, of purse or of sword, to en­force its rul­ings. The court “can­not buy sup­port for its de­ci­sion by spend­ing money, and, ex­cept to a mi­nor de­gree, it can­not in­de­pen­dently co­erce obe­di­ence to its de­crees,” a three-jus­tice plu­ral­ity noted in the 1992 abor­tion rul­ing de­clin­ing to over­rule Roe v. Wade. “The court’s power lies, rather, in its le­git­i­macy, a prod­uct of sub­stance and per­cep­tion.”

It is naive to imag­ine that jus­tices don’t have po­lit­i­cal views, or strong po­lit­i­cal pref­er­ences. Of course they do. It is the rare jus­tice who ends up on the court with­out hav­ing ties to pol­i­tics and politi­cians.

As the late Jus­tice An­tonin Scalia pointed out in ar­gu­ing that he needn’t re­cuse him­self from a case in which Vice Pres­i­dent Dick Cheney was a party af­ter the two went on a hunt­ing trip, “from the ear­li­est days down to mod­ern times jus­tices have had close per­sonal re­la­tion­ships with the pres­i­dent and other of­fi­cers of the ex­ec­u­tive.”

But there is a dif­fer­ence — a big one — be­tween hav­ing a pre-ex­ist­ing po­lit­i­cal re­la­tion­ship or predilec­tion that the pub­lic might rea­son­ably pre­sume (no one would mis­take Gins­burg for a po­ten­tial Trump voter) and one that is so strongly held that the jus­tice feels im­pelled to make it pub­lic.

That ap­proach is not mere win­dow­dress­ing. Ju­di­cial si­lence is the trib­ute that the im­per­a­tive to ap­pear im­par­tial pays to re­al­ity.

Some peo­ple will read this and snort: The jus­tices are po­lit­i­cal an­i­mals like all the oth­ers; they de­cide based on their po­lit­i­cal views, not on the law.

This dis­mis­sive­ness ig­nores and ob­scures the dis­tinc­tion be­tween ide­ol­ogy and par­ti­san­ship. Broadly speak­ing, Repub­li­cans and Democrats have dif­fer­ing con­cep­tions of the role of the ju­di­ciary, the mean­ing of the Con­sti­tu­tion, and the proper ap­proach to its in­ter­pre­ta­tion; it is no surprise, and no tragedy, that judges ap­pointed by Repub­li­can pres­i­dents tend to­ward one set of rea­son­ably pre­dictable con­clu­sions and those named by Demo­cratic pres­i­dents an­other.

But there are, or should be, lim­its to this link­age. Rul­ing on the re­flex­ive ba­sis of par­ti­san­ship is dif­fer­ent from a de­ci­sion guided by ide­ol­ogy. That is one rea­son the court’s 2000 de­ci­sion in Bush v. Gore was so dis­turb­ing. The five-jus­tice con­ser­va­tive ma­jor­ity adopted a one-time-only ex­pan­sive read­ing of the Equal Pro­tec­tion Clause that con­flicted with their usual nar­row in­ter­pre­ta­tion. This was a lib­eral ju­rispru­den­tial ap­proach in cyn­i­cal ser­vice of a con­ser­va­tive po­lit­i­cal out­come: hand­ing the elec­tion to Ge­orge W. Bush.

In this con­text, Gins­burg’s re­marks — like Scalia’s duck-hunt­ing — pre­sent a prob­lem, and not just for her. They drag the court down to the level of other po­lit­i­cal ac­tors, into the par­ti­san muck. They re­in­force the pub­lic’s per­cep­tion that this game, too, is rigged — more than it ac­tu­ally is. Ev­i­dence of its in­de­pen­dence: this term’s surprise rul­ings up­hold­ing af­fir­ma­tive ac­tion and abor­tion rights.

Judges aren’t the neu­tral um­pires, me­chan­i­cally call­ing balls and strikes, of Chief Jus­tice John Roberts’ imag­in­ing. But they can as­pire to that ideal, and should — on and off the bench.

Ruth Marcus is a syn­di­cated colum­nist. Con­tact her at ruth­mar­cus@ wash­post.com.

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