Perhaps we should expect less sobriety in judges


David Crisp

Ruth Bader Ginsburg, the Supreme Court justice known to her fans as the Notorious RBG, has apologized to Donald Trump. He apologizes to no one.

According to news reports, Ginsburg, 83, called Trump a “faker” and admonished him for failing to release his tax returns. She also said this to the New York Times: “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.”

Trump replied that her mind was “shot” and that she should resign. She acknowledged that she should not have expressed an opinion about a political candidate.

Here’s the funny thing: Whether she spoke out or not, nobody doubted that Ginsburg thought the things she said. Her ideology may lean left, but her deportment and public conduct are thoroughly traditional, which may explain why she and the late Justice Antonin Scalia, her ideological opposite on the court, could become such good friends.

Anyone could imagine how a reserved old-school lady must have felt when a churlish boor like Donald Trump claimed a major party presidential nomination. Probably 150 million other Americans felt almost exactly the same thing. In her heart, she probably wanted to rap his knuckles and warn him to grow up and behave.

If she had just kept quiet, we all could have carried on with the polite fiction that judges are moved only by the law, never by personal opinions. For some reason that probably never made sense, and makes less sense now than ever, journalists are expected to obey the same fiction.

My first thought when I heard about Ginsburg’s comments was that she should be exempted under the modest First Amendment addendum I have long favored: Any citizen who has reached the age of 80 has the right to speak freely without public recrimination of any kind by anybody.

This provision would have two benefits: It would protect from public humiliation citizens whose wits may have dulled with age, and it would occasionally expose the rest of us to unvarnished honesty from people who are no longer under the illusion that they have a career to protect.

But if we are going to allow citizens to hold public office into their 80s, then I suppose Ginsburg must not be granted this exemption. So I had other thoughts.

My second thought was that she was expressing a character assessment of Trump, not a legal opinion, so she did not violate the ethical precept that judges should not take sides about cases that are pending or that may come before them. This precept makes perfect sense: Judges must not commit themselves to a specific outcome until they have weighed all the facts and arguments in the case.

But critics sensibly pointed out that if, for instance, a reprise of Bush vs. Gore should come before court in the form of Trump vs. Clinton, then she might have to recuse herself. That would permit the rock-ribbed Republicans on the court to elect Trump while Democrats sat on the sidelines.

My third thought was that in recent years Supreme Court justices, for better or worse, have become more and more publicly outspoken. Ginsburg’s pal Scalia frequently gave speeches about his judicial philosophy, and even appeared on a panel in Billings.

Justice Samuel Alito has publicly defended the Citizens United decision and appeared to mouth the words “not true” when President Obama in a State of the Union address warned of the evil impacts the decision would have. For what it’s worth, Obama appears to know his politics better than Alito does: A recent report by the Brennan Center for Justice finds that, in the six states studied, “dark money” spending was 38 times greater in 2014 than it was in 2006.

My third thought led to a fourth thought: What’s the big deal anyway? We don’t want World Series umpires rooting on their favorite team. We don’t even want them to have a favorite team. But all American citizens are entitled to an opinion about the presidential election.

If any judge is entitled to a grudge against Trump, it’s Gonzalo Curiel, the Indiana-born judge that Trump deemed unworthy of judging the Trump University case because of his Mexican heritage. Yet we expect Curiel to soldier on, quietly seething, denied even the satisfaction of giving Trump the tongue lashing he deserves.

How does requiring justices to keep their opinions to themselves ensure a better brand of justice? Why isn’t justice better served when judges lay their biases on the table for all to see, and then promise to do their best not to let those biases influence their legal opinions?

The same question arises repeatedly in modern journalism, where online reporters like us here at Last Best News write not only news stories but also blog posts, weekly columns and Tweets. That old objective model of journalism never served us all that well, and it seems badly dated in the internet age.

Better to be honest about biases than to pretend they don’t exist. Either that, or wait until we turn 80 and let opinions fly freely. I can hardly wait.

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