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The Notorious RBG

So Ginsburg has spoken out against Donald Trump.

"I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our President."

Yes, this is very unusual. By way of comparison, Justices Douglas and/or Black, not to mention Chief Justice Warren, spoke in no such way about Richard Nixon in 1968. Surely they despised him, and saw his then-still-hypothetical presidency as a threat to their judicial legacy. But they retained what is considered proper judicial decorum in such matters.

For a sober, professorial, discussion of why Ginsburg was in the wrong and why the defenses of her comments are also "mostly wrong," go to PrawfsBlawg.

But of course this is the Justice widely known as the "Notorious RBG." If she's not going to be the court's badass, who will be?


  1. Here is an article titled, "The criticism of Ruth Bader Ginsburg ignores much of the nation’s history":

    In particular, it notes that, "In 1944, Justice William O. Douglas lost a convention fight to be Franklin Roosevelt’s vice-presidential candidate. Four years later, Douglas turned down Harry Truman’s offer to be his running mate, reputedly because Douglas wanted the top job for himself." That's not quite the same as criticizing (or praising) a candidate, but it could have raised similar conflicts concerning future cases that came before the Court.

    I do not endorse Ginsburg's actions, mostly because of the criticism that they have brought her. But, for three reasons, they don't trouble me much.

    First, because Trump is a threat to the Constitution and to our democracy, all justices, liberal and conservative, ought to be warning against him. If they all did, then they presumably none would recuse himself or herself from a case involving Trump.

    Second, Scalia and Thomas have spoken before the Federalist Society, and Scalia went hunting with Cheney (and then would not recuse himself). Why should liberal justices unilaterally disarm?

    Third, we all know that justices have political opinions, so why go through the charade of pretending otherwise? A judge would be incompetent if she could not separate her political biases from her legal analysis, and she would be unethical if she did not seek to do so. I realize that this argument would also justify a justice campaigning for a candidate, and that would seem to go too far. That's why I do not endorse Ginsburg's comments. But I think that far too much has been made of them.

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  3. One more thing. To blatantly decide cases on the basis of one's political biases is far more serious than to state one's political biases. Yet the right-wing justices do the former regularly. They did so, of course, in Bush v. Gore, and that seems to have given them a license to continue to do so. Yet they have not faced even a small fraction of the criticism that Ginsburg has faced for her lesser crime.

    Recent examples of this action by right-wing justices are Thomas's and Alito's dissents in this past term's Texas abortion case. Their legal analysis was so specious that they could not have believed what they wrote. They dissented solely to express their opposition to abortion or their support for the Catholic church's opposition to it.

    Their opposition to abortion is so strong that they feel that their duty to stop it overrides their duty to decide cases according to the law. As Supreme Court justices, they could have legitimately dissented on the grounds that they believe Roe v. Wade and Casey to have been incorrectly decided. But they didn't. Instead, they dishonestly pretended that those cases did not demand the result that the majority reached.


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