Ginsburg on Attack

By Alicia Kysar
 
Alicia Kysar studied Political Science and English at Columbia University
 
Last week, Justice Ruth Bader Ginsburg dominated American headlines for scathingly criticizing Republican Presidential candidate Donald Trump in a series of three interviews that she conducted with, respectively, the New York Times, Associated Press, and CNN.
 
Speaking on the effect that his potential presidency would have on the country and, specifically, on the Supreme Court, she noted, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.” [1]

When she said that, Ginsburg’s mind was clearly on the three Supreme Court justices who will in all likelihood retire and be replaced during the next president’s time in office: herself (age 83), Anthony Kennedy (age 79), and Stephen Breyer (age 77). Furthermore, since Republicans in Congress have indefinitely delayed hearings and a vote on Merrick Garland, President Obama’s replacement for the late Justice Antonin Scalia, the next president will probably have four Supreme Court seats to fill.
 
Arguably one of the most influential decisions an American president can make during his or her time in office is nominating a Supreme Court justice. Not only can the Justice’s tenure extend far beyond the president’s term, but the Supreme Court justice is party to decisions that other branches of government have far less power to appeal than decisions that the president makes.
 
Thus, it is understandable that Justice Ginsburg worries about the fate of the Court if Donald Trump had the power to nominate four justices, given that his political views are far different from hers, and that he has been a candidate notorious for his unorthodox and extreme opinions and rhetoric.
 
However, Justice Ginsburg has fallen under heavy criticism not for her opinions about Trump, but rather about her decision to voice them, and in such a public forum at three national and international publications.
 
In fact, the Editorial Board of the New York Times wrote a rare, provocatively-titled op-ed criticizing Ginsburg for making those remarks: “Donald Trump is Right About Ruth Bader Ginsburg.”[2] The opening sentence of the op-ed succinctly captures the point of the article: “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.”[3]
 
The op-ed cites Bush v. Gore (2000), in which the Supreme Court effectively decided the presidential election, as a compelling reason for which Ginsburg should maintain her judicial independence. More generally, also, Ginsburg’s at least apparent unbiased viewpoint is essential as she rules on the constitutionality of any law that the possible future president Trump passes.
 
Ginsburg herself issued a statement of regret for voicing her opinions on the presidential candidate, calling them “ill-advised.” She went on to give a more complete statement: “"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."[4]
 
It is unclear why Ginsburg broke from the Court’s traditional silence on political issues, even though it is likely that Trump’s extreme opinions, her advancing age and potentially impending retirement, as well as the death of her colleague and close friend Justice Scalia may all have been factors in eliciting these comments. Her shift also calls to mind the possible effects of judicial idolatry which I discussed in a previous article in 2015 for this same publication, using Justice Ginsburg as an example of a public figure who could be pushed further into the public eye by an ever-growing and unprecedented fan base.[5] The full of effects of her comments remain to be seen as the rest of the 2016 presidential election continues to play out.
 
 
[1] Liptak, Adam. “Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term.” The New York Times. July 10, 2016.
[2] The Editorial Board. “Donald Trump is Right About Ruth Bader Ginsburg.” The New York Times. July 13, 2016.
[3] The Editorial Board. “Donald Trump is Right About Ruth Bader Ginsburg.” The New York Times. July 13, 2016.
[4] Taylor, Jessica. “Ginsburg Apologizes for ‘Ill-Advised’ Trump Comments.” NPR News. July 14, 2016. 
[5] Kysar, Alicia. “Supreme Court: The Downside of Judicial Idolatry.” PULJ: The Roundtable. July 21, 2015.

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