When the New York Times editorial board writes that Donald Trump is right about something and Supreme Court Justice Ruth Bader Ginsburg is wrong, you should probably slap your face to see if you wake up.
But that’s what happened Wednesday. Ginsburg ventured this week into territory that most Supreme Court justices wisely avoid. She publicly and acidly criticized the presumptive GOP nominee, calling him “a faker” who “really has an ego,” and lamented that he could be elected president.
Ginsburg is not alone in this opinion. Our editors and some columnists have written and published similar criticisms of Trump in this space. But, as the Times noted, none of us will be called upon to judge a Trump-Clinton recount, or to issue legal orders to a Trump administration.
“Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit,” the Times’ editorial board wrote.
While the criticism is appropriate, the vituperation of it is nonetheless amusing. It’s as though the Times’ editors suddenly reached the age where they discovered that their parents don’t know everything. There’s probably an element of editorial pique at the court’s leading liberal exposing herself as the partisan that right-thinking people have always known her to be. The paper doesn’t like admitting that its favorite justice is kind of a political hack.
It shouldn’t be a surprise that Ginsburg would talk as she did. American courts have been venturing further and further into politics for 40 years. At the heart of liberal judicial philosophy (rejected by conservative textualists) is the idea that the U.S. Constitution is a living document that can be interpreted to mean almost anything to suit the occasion or bring about a desired outcome in a given case. Divining what it means from one day or epoch to the next is, in truth, a political rather than judicial activity.
Ginsburg’s little diatribe against Trump may have been undignified, but it was arguably less offensive to the role of the judiciary than many Supreme Court and lower court decisions that attempt to take away voters’ power to govern themselves on any number of subjects not addressed in the Constitution.
The Court, with Ginsburg participating, recently turned itself into a national board of health when it struck down reasonable state health and safety regulations on abortion. And there is a good reason that the court’s decision redefining marriage was a mushy legal mess, for it was a piece of outcome-based judging by a panel that increasingly views itself as an arbiter of societal mores and tastes rather than interpretation of law.
Beyond the recent decision to uphold racial preferences in admissions to state universities as constitutional, Ginsburg actually signed on to a dissent in 2014 that argued they are constitutionally required. That’s right — she would have reimposed such preferences in Michigan, whose voters had explicitly and overwhelmingly chosen to end them in a referendum.
The Left has politicized the court system at lower levels, too, as we are reminded each time local judges attempt to block or reverse much-needed reforms in states. In 2011, liberal local judges in Wisconsin desperately tried to delay the day of reckoning for the state’s labor unions by issuing frivolous injunctions, first against Gov. Scott Walker’s collective bargaining reforms and later against right-to-work legislation. If they hadn’t lost a bid to take over the state Supreme Court, they’d probably be looking for a case with which to strike those reforms down, even though they have proven very popular with voters.
Illinois is another example. That state now faces a full-blown fiscal crisis, in part because its supreme court has taken the position that almost any reform of the state’s pension system is unconstitutional.
It is thus absurd to see liberal fans of Ginsburg acting as though they are shocked — shocked! — that there is politics going on in this court. Ginsburg’s mistake was not in what she said, but that she said too much in public.
