Whenever I write a post about Justice Ginsburg’s most recent comments, I brace myself for the torrent of criticisms. They usually fall along 7 lines. I will try to identify them here, so I can simply link back in the future. I don’t claim I have perfect responses, but these seem to be the most common criticisms I receive.
- But what about Justice Scalia? This comment goes something like this–“Justice Scalia has been talking about abortion or homosexuality for years. Isn’t that inappropriate?” Invariably, all of these comments circle back to Scalia’s remarks about his published dissents in Planned Parenthood v. Casey and Lawrence v. Texas. I see a huge difference between a Justice commenting on a case he already decided, and weighing in on a case not yet decided. I am not a big of this practice. I would prefer a Justice let their opinions speak for themselves. But, talking about already-decided cases doesn’t run the risk of inserting bias into pending cases. Now, some may reply, “his comments about abortion from Casey will impact his decision in Carhart. If he thinks there is no constitutional right to abortion, of course the partial birth abortion ban is constitutional.” Likewise, his dissent in Lawrence already made the argument that if states cannot criminalize sodomy and express moral disapproval about homosexuality, they also cannot prohibit same-sex marriage. In a way, he expressed his opinion on this topic a decade ago. But if he now makes this point explicitly in public comments–that bans on same-sex marriage must be upheld–he acts inappropriately. This is the case pending before him. There is definitely a fine line here, and I don’t pretend that Scalia is always on the correct side. I’ve frequently criticized Scalia where he messes up.
- What difference does it make? This criticism contends, “we all know how Justice Ginsburg is going to rule in this case. Why do we care what statements she makes?” I am not so formalistic to think that Justices approach all cases with blank slate. They certainly have priors–some we can glean from previous decisions, and some we may never know about. But historically, judges strive to maintain the appearance of propriety, so the litigants and the justice system at large think they are getting a fair shake. Judges wear flowing robes (and doilies) and sit behind majestic columns to impart a sense of detachment from the everyday society. Whether this is true or not, the courts support this image. These sorts of comments destroy that veneer.
- Don’t we want to know what they think? This argument is made most forcefully by my friend Eric Segall. To summarize, Eric argues that it is better that we know what the Justices are thinking. I won’t even attempt to respond to Eric’s argument here, short of my answer, “I’d rather we didn’t know.” Following from my previous comment, I think the Justice system would be materially worse off if the pretenses of neutrality were cast away. Again, this is a deeper philosophical issue that goes far beyond Justice Ginsburg.
- Won’t their questions at oral arguments give away their opinions? Another species of this critique is that the Justices often signal how they will vote during oral arguments. Empirically, this is not correct. If this were the case, then experts would be able to predict the votes of 8 Justices (Thomas excepted) with stunning accuracy. They don’t. They barely beat chance. Even the most sophisticated algorithms based on oral argument transcripts can only get 70%. The best players on FantasySCOTUS only get about 80% correct. While a justice’s questions may often suggest which way they are leaning, often Justices serve as the devil’s advocate–they want the lawyer to strengthen or weaken a different argument. The question of whether a Justice is signaling his views, or playing devil’s advocate, is ample to maintain the appearance of neutrality.
- The Justices are not bound by the Code of Judicial Ethics? Yes, the Justices are not bound by the rules of ethics that the lower courts are subject to. Although, they claim they abide by the canons of ethics. The Court adopted an “Ethics Resolution” in 1991, before RBG joined, promising to abide by the canons.
- But she is the NOTORIOUS RBG?! Some argue that Ginsburg is 81, a living legend, and has no fucks to give (pardon the expression). Who cares if she comes to the State of the Union drunk. YOLO. Next time she should bring a selfie stick! #NotoriousRBG As I noted following Hobby Lobby in a post titled Ruth Bader Hubris, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” It becomes very dangerous when people glamorize a person whose job is to decide important legal issues. The opinions and the person blend together, making it difficult to separate the two.
- What about Posner? The last, best hope of justifying any questionable behavior by a Judge is to cite Judge Posner. I’m sorry, this doesn’t work. Judge Posner is sui generis, and I don’t necessarily mean that in a positive way. He lives by his own code. He routinely writes and speaks, at great length, about topics that come before him. These comments are not limited to discussions of his opinions, but represent commentary on the most important issues of our time. He also routinely criticizes Supreme Court precedent in books and columns, outside the scope of his judicial duty. We can debate at length the role of Posner, but he should not serve as some sore of lodestar to assess the ethicality of what judges do. I would be content to leave him as an outlier.
I don’t claim that these argument are air-tight and clear-cut. I also don’t claim that my position is correct. Ethical arguments often exist in the areas of grey between black and white. But in the future, when a Judge speaks out of turn, I’ll link back here.