At Balkinization, Mark Tushnet writes,
To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases.
Implicit in this argument is the assumption that all sophisticated people recognize the political intentions of judges, so we might as well pull back the curtain by encouraging them. to simply come out and campaign (or accepting that they will). Erwin Chemerinsky says that he is looking forward to that.
No one likes facades (well, perhaps with the exception of symbolic interactionists), but let me suggest another way of looking at it. We may not expect judges to be free from political opinions, but we do expect them to try to put them aside when judging. Is that always possible? Of course not. Is it ever possible? Resoundingly, yes.
If you don't believe that judges can put politics aside, at least now and then, how do you explain Justice Roberts's vote in the ACA cases? Or, for that matter, Justice Breyer's vote on the full-state recount issue in Bush v. Gore?
Political neutrality is not a facade, it's an aspiration. When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg's recent remarks.
UPDATE: Noah Feldman is another enabler. Writing on Bloomberg, he observes that "nothing in the Constitution . . . demands that the justice be nonpartisan." That is true but irrelevant, given the that Constitution did not contemplate the existence of political parties at all. One of "injuries and usurpations" listed in the Declaration of Independence, however, was King George's control of the judiciary, which led to excessive identification of judges with the then-existing executive branch.
The Constitution thus created life tenure for Supreme Court justices in order to remove them from political domination. Feldman states that "life tenure guarantees independence, not neutrality," but in this instance that is a non-sequitur. Why do we care about independence, if not to promote neutrality?
Feldman says,
The arguments against Ginsburg’s candor almost all come down to the idea that she should have respected propriety and upheld the myth of judicial neutrality. But who, exactly, believes in that myth in the year 2016? It’s been 16 years since Bush v. Gore killed off any vestiges that might have existed.
I would prefer to think of Bush v. Gore as a warning, rather than a model to be followed. Should presidents after Nixon have authorized burglaries, on the ground that law-abiding presidencies are a myth? Should future Congresses impeach presidents for political reasons, on the ground that nobody trusts Congress anyhow? "In for a dime, in for a dollar" is not the right metric for judicial ethics, or any other sort of ethics.
Ginsburg, like Scalia before her, is an embarrassment to the federal judiciary. Progressives too should call for her to retire before the beginning of OT16. She's become the ultimate poster child for mandatory retirement by age 75.
To say that the Chief Justice's opinion in the first Obamacare case as an example of "putting politics aside" seems to me the exact opposite of what actually happened.
Guest
Absolutely right. And all the more disturbing given the "I just call balls and strikes" testimony.
Bush v. Gore was 7-2 on the Equal Protection issue. The Supreme Court nearly unanimously agreed that the method of recounting the ballots in Florida violated the Equal Protection Clause of the Constitution.
Not even close.
The SCOTUS was 5-4 on remanding to the Florida Supreme Court to determine an alternative method of recounting the votes within the time limit set 3 U.S.C. § 5,. The "safe harbor" deadline was December 12, the day of the court's opinion, and the majority of the SCOTUS held that the safe harbor was the deadline. The case was remanded, however, "for further proceedings not inconsistent with this opinion." Al Gore then conceded.
The Party has succeeded in the convincing much of the public that the Supreme Court "selected" Bush. Bush had already been certified the winner of the Florida election before Al Gore's case went to the SCOTUS, and all that happened was that Al Gore lost his effort to challenge that result in the federal system.
Basically, the Party has promulgated as "conventional wisdom" a gross twisting of the truth ever since.
Likewise, Citizens United. The Party waives around that bloody shirt without ever explaining that the law in question would have banned books and stifled the freedom of the press (which is largely, these days, operated by corporations).
Integrity? Principles? Nah. Politics.
And now, the Orwellians come forward to tell us that judicial bias is GOOD and better when announced in advance! How much longer can the thinking people of this country allow themselves to be led around by the nose? That is what Kennedy criticized the Republicans for.
She is morally right to do that. We need to get the Sanders voters in Hillary's corner. She is a credible spokesperson and speaks to the younger voter. She is known as the Notorious RBG. The country needs her. Simply put, we will end up with Dump.
QUOTE
If you don't believe that judges can put politics aside, at least now and then, how do you explain Justice Roberts's vote in the ACA cases? Or, for that matter, Justice Breyer's vote on the full-state recount issue in Bush v. Gore?
/QUOTE
Rather than "setting aside politics," these might also simply be examples of following political preferences that don't line with traditional expectations or standard party lines. When Scalia voted in case after case in favor of defendants was he setting aside law-and-order politics or was he pursuing what was to him a more fundamental political agenda of originalism? Were the CJ's "it's not a tax/it's a tax" acrobatics in the ACA case really his setting aside politics or instead him following a more fundamental political agenda of advancing the legitimacy of the Court?
If the point is that justices don't follow main party lines I agree with that. If it's that they even sometimes feel compelled to vote against all of their preferences, I'm sure that occurs (though I expect it's exceptionally rare). My point is that some of the most prominent examples of setting aside politics might really be a justice acting at a higher strategic level or following a non-party agenda that is nonetheless political.
Cynthia: Yes, I think you are right. Thanks for clarifying.
I should have said "partisan affiliation" rather than "politics."