Eric Segall (and Ed Whelan) on Justice Ginsburg Michael Ramsey

July 16, 2016

At Dorf on Law, Eric Segall: Justice Ginsburg and the Emperor’s New Clothes. From the core of the post:

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated." Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well. …

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. …

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision?

…

So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. …

And from a different perspective, a somewhat similar conclusion from Ed Whelan at NRO:

[T]he “living Constitution” approach that Ginsburg subscribes to—under which the Constitution will be said to mean whatever she wants it to mean—is nothing more than the thinly disguised imposition of her strongly held policy preferences. In short, for living-constitutionalists, the reality of impartiality is an illusion (even if it’s an illusion that some of them subjectively believe in—or at least find it useful to pretend to believe in).

Having embraced a constitutional approach that makes a sham of actual impartiality, why—other than to deceive us yahoos—should Ginsburg try to maintain the false appearance of impartiality? Let’s give her credit instead for exposing, once again, how nakedly political she is.

Posted at 6:19 AM