Supreme Court Justice Ruth Bader Ginsburg caused quite a stir
this month by saying what was on her mind about Donald Trump to the New York Times. "I can't imagine what the country
would be — with Donald Trump as our president," she said.
If her husband were alive, she continued, he might have said,
"It's time for us to move to New Zealand." In a later interview with
CNN she called Trump "a faker" who "says whatever comes into his
head at the moment."
It's no surprise that Justice Ginsburg should entertain these
views. She was appointed to the Supreme Court by Bill Clinton. Before becoming
a judge, she co-founded the Women's Rights Project at the American Civil
Liberties Union. She's the star of a Tumblr blog called Notorious R.B.G. that
celebrates her as a hero of the left.
But Canon 5 of the Code of Conduct for United States Judges says
that "a judge should refrain from political activity." In particular,
she should not "publicly endorse or oppose a candidate for public
And although the code applies to all federal judges except those
on the Supreme Court, the justices traditionally stay out of politics. John
Marshall Harlan II, appointed by President Dwight D. Eisenhower in 1955, didn't
even vote after he took his seat on the court.
There is general agreement that Justice Ginsburg should have kept
her thoughts to herself (and she has admitted as much). Judges are supposed to
be fair and impartial, and comments like hers create the appearance (to say no
more) that she favors one party over the other.
Imagine if a case like Bush v. Gore
arose out of the November election. Trump might be forgiven for supposing that
she had a bias against him.
I think, though, that the justice's comments reflect a deeper
misconception about the role of a judge, and it is one she shares with a lot of
In 1973 the Supreme Court held that the due process clause
guaranteed women the right to have an abortion — a right with no foundation in
the language or the history of the Constitution. It seemed, Justice William
Rehnquist said in dissent, more like "judicial legislation" than
Last year the court held that the due process clause guaranteed
same-sex couples the right to marry — another right the Constitution says
nothing about. Chief Justice John Roberts characterized the court's decision as
"an act of will, not of legal judgment."
If the members of the Supreme Court are nothing more than
politicians in robes, the rule forbidding them to engage in political activity
seems pointless, even disingenuous. Canon 5 rests on a different view of the
judge's role. It assumes that the Constitution and laws have meaning, that they
are binding on decision-makers. Judges are constrained by text and precedent.
They can't discard or improve on outdated language.
This is what allows us to feel comfortable entrusting weighty
matters of constitutional interpretation to people who in their prior lives may
have worked for the ACLU or the Heritage Foundation.
Since the decision in Roe v. Wade,
though, a majority of the court has claimed the authority to make things up.
This has had the natural effect of leading us to see its work as politics by
It's not just Democrats who take this approach. Republicans in
the Senate have held up the nomination of Merrick Garland because, they say,
this is an issue the people should have an opportunity to weigh in on. Trump
has floated a list of candidates he would consider in lieu of Garland. We're
voting for the Supreme Court.
This is a bad turn of events, and to my mind, the court has
itself to blame. Its assertion of authority to make law has taken power from
the elected branches and undermined the very reasons we have for trusting the
Garvey is president of The Catholic University of America