One of the stranger incidents in the modern history of the Supreme Court unfolded this past week when Justice Ruth Bader Ginsburg told a New York Times reporter, “I can’t imagine what the country would be with Donald Trump as our president,” and was accelerated with a further dose of acid about Trump (“a faker”) in a CNN interview. It ended a few days later when Justice Ginsburg issued a statement from her chambers, conceding (among other things) that “my recent remarks in response to press inquiries were ill-advised and I regret making them.”
As well she should. There was a time, not so long ago, when Supreme Court justices resolutely declined to comment publicly about the inner workings of the Court, as well as subjects that might come to the Court’s attention. Even Court nominees would refuse to answer hypothetical questions during Senate confirmation. Those days, alas, are gone. But justices remain generally circumspect about public issues and, especially, about politics—and for obvious reasons: The credibility of the judicial branch of government can hardly survive if judges render their opinions in advance.
Justice Ginsburg’s bad judgment in this instance should be obvious: If Donald Trump IS elected president, he could reasonably argue that such public contempt and criticism disqualifies her from judging the government’s cases. Indeed, how obvious was Ginsburg’s misjudgment? Both the Washington Post and New York Times editorial pages sided with, yes, Donald Trump, the Post explaining that while Ginsburg’s comments may have been “valid” they were “much, much better left unsaid by a member of the Supreme Court.” The Times exhorted Ginsburg “to drop the political punditry and the name-calling.”
We may never know what, exactly, caused Ruth Bader Ginsburg to behave so bumptiously—or, for that matter, what prompted her to step back from the abyss. But The Scrapbook has a theory or two. Justice Ginsburg has become something of a cult figure among her most fervent admirers: They have dubbed her “the Notorious RBG” (a play on the name of a famous rapper) and attend her lectures and public appearances, and savor her offhand pronouncements, with the passion of pop music fans and souvenir hunters. It is entirely possible—it is entirely likely—that all this has gone to the 83-year-old head of the Notorious RBG.
There is another possibility, which The Scrapbook hopes may be true: Chief Justice John Roberts might have privately instructed Justice Ginsburg that her behavior was damaging the integrity of the Court, and to stop it. If so, the chief’s intervention was both timely and honored by precedent.
In recent decades, chief justices have been notably reluctant to intervene in such circumstances, especially when older justices show clear signs of failing judgment or incapacity. This has led to such grotesque circumstances as the mortifying period, during 1974-75, when Justice William O. Douglas, reduced to invalid status by a stroke, resolutely refused to step down. In that sense, The Scrapbook is reminded of a poignant chapter in Court history. When, in 1932, it became clear that the 91-year-old Justice Oliver Wendell Holmes could no longer share the burden of the Court’s work, Chief Justice Charles Evans Hughes went to visit him at home one Sunday morning and gently explained that he and his colleagues on the Supreme Court had reluctantly concluded that Holmes ought to resign.
Which Holmes did, there and then. Hughes later remembered his action that day as a “highly distasteful duty,” but it was the right thing to do—both for Holmes’s reputation, and for the sake of the Court. If Chief Justice Roberts played any part in saving the Notorious RBG from herself, The Scrapbook offers its thanks to him.
