I Know You Are But What Am I, Or, Another Day Of SCOTUS Fighting With Politics

No, you're the worst

"Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me," Donald Trump tweeted on Tuesday. "Her mind is shot — resign!"

What did the 83-year-old justice do to earn such scorn? Like most people derided by the candidate's personal fortune cookie generator, Ruth Bader Ginsburg had given Trump a less than glowing review — on forums he considers safe spaces. She called him a "faker" on CNN. She told the New York Times, "I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president."

The moment was rare, because many observers jumped to Trump's defense. The Washington Post editorial board wrote that the "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 editorial board said that Ginsburg "needs to drop the political punditry and the name-calling."

On Thursday, the justice said, "On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

The fact that a Supreme Court justice was acting political was anything but novel, however, even if there was a little less pretense about it than usual. Everything about the Supreme Court is steeped in politics, and it's hard to fault justices for not being holier than the system that created them — especially since there are few rules dictating how they are supposed to act.

The Constitution says that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." That's about it. The most notable of the court's powers — deciding if laws and executive orders obey the Constitution — wasn't even created until 1803. There is a code of ethics that provides a broad list of guidelines for other federal justices — avoid conflicts of interest; don't do anything gross; be a referee, not a political player — but the Supreme Court is above it all. This has made it easy for many people throughout the years to treat the justices like a bunch of Bennet sisters.

"Judge Field of the United States Supreme Court talks politics too much for a man in his position," one newspaper complained in 1883. "Is the Warren Court Too Political?" a New York Times headline asked in 1966. In 2015, a handful of Democratic legislators tried to pass a bill that would have forced the Supreme Court to acknowledge the same laundry list of ethics as its peers in the federal court system. The reform effort was prompted by the doings of Justice Clarence Thomas and the late Justice Antonin Scalia, who spoke at political fundraisers for conservative-leaning causes. Some of the same Democratic legislators who sponsored the ethics legislation have said that Ginsburg's remarks were bad news, but it hasn't inspired the same conversation about ethics policy — perhaps because the conversation around the Supreme Court is as political as whatever might be happening within.


And therein lies the rub. While the public still seems queasy about what political activities Supreme Court justices might take part in during their free time, we have conceded that the official business of the Supreme Court is inherently political, and requires great political acumen. They are, as one law professor put it, "unelected, life-tenured politicians masquerading as judges." Jeffrey Toobin at the New Yorker adds that "the Court has never been above politics, or even outside of it." Presidents are very aware of the extent to which their Supreme Court picks will shape their political legacy.

This is not a new development, either. Although the current Supreme Court justices all had lengthy legal careers before ascending to the big bench, there used to be a long tradition of politicians serving. Presidents realized that understanding the political ramifications and context of a law was often as important as understanding the legal nuts and bolts of a case to effectively adjudicate it. President William Howard Taft was a chief justice. Earl Warren, one of the most consequential chief justices in history, was previously governor of California and a vice-presidential candidate.

However, those in charge of arbitrating the shape of the Supreme Court — the president and Congress — seem to have become more aware in the past few years of the political nature of the Supreme Court, which has left the Supreme Court little option but to play along. The justices vote along party lines, and hire clerks who agree with their ideological views. Their partisanship leaks out when they speak to the media. Trust in the Court falls along partisan lines. When justices diverge from the party that nominated them, they are seen as traitors. The political system's view of the Supreme Court as a mighty marble drone, tasked with targeting unsavory policy and filleting it one footnote at a time, probably reached a new partisan apex with the debate over who would replace Scalia, a vacancy so valuable to each party's strategy that the decision of who will fill it has been postponed until after next January, making the role of Supreme Court justice sort of an elected-official-by-proxy position by letting voters decide who the next one will be.

The problem of having political extrajudicial duties is even worse for some state Supreme Court justices, who must actually run for election — and court donors and fend off, or embrace, outside money in the process. And as this election has shown, you don't even need to be a Supreme Court justice to be accused of politically motivated violations. Remember when Trump said a federal judge had an "inherent conflict of interest" because he was "of Mexican heritage" and the candidate was "building a wall?"

The only new thing Ginsburg did was refuse to pretend that the political motivations governing the Court were merely invisible wisps floating above oral arguments. Her statements may have been unwise, they may have no influence on the race — especially since no one even knows who these powerful political actors are — and it would be nice to do away with such remarks in a perfect world where the only thing on the Supreme Court's menu is high-minded philosophical discussions about pure, unadulterated law. But the one thing that the Supreme Court's history has made clear is that silence from the justices alone, both inside and outside the court, will not make a perfect world. If the goal is a Supreme Court that stays above it all, the metamorphosis will probably have to start outside of it.