The human mind has a tendency to understand things in a way that conforms to what we already believe in order to avoid cognitive dissonance. This phenomenon is referred to as motivated reasoning. (For a fascinating discussion, read Daniel Kahneman’s Thinking Fast & Slow). The reaction to the Inglorious RBG’s comments over the past week illustrates how motivated reasoning operates.
Ginsburg’s statements given to AP on Thursday, NYT on Friday, and CNN on Monday were absolutely inappropriate, by any standard. (It is remarkable that she didn’t have enough sense to stop talking to the media on Monday, after the outrage over the weekend!).
Yet many–who were inclined to agree with RBG’s comments–felt compelled to provide reasons to defend her. The arguments fell along a scale of sophistication. Some said that its better to know what judges think, so the comments were actually welcome. Some said she has no fucks to give, and that’s awesome because Notorious. Others said that the rules of judicial ethics (even if they applied to SCOTUS) are constrained by the First Amendment. Others took a historical approach, and explained there is a long history of the Justices openly being involved with politics (note all the examples predate Abe Fortas–with good reason). Others tried to explain this was no different than Justice O’Connor telling friends at a private party who she supported for President, or Justice Scalia going on a hunting trip with VP Cheney (if you haven’t already, read Nino’s 20-page memorandum on recusal standards). Others explained that this was a momentous time like 1936, and it warranted a change in judicial norms. Others said Ginsburg was willing to risk the reputation of the Court to stop the calamity of Donald Trump. Others, invoking Godwin’s law, asked what did judges in Weimar Germany do to halt the rise of Hitler? I’m sure I’m missing some, because I frankly stopped reading all of these rationalizations after the first two days.
Were any of these Ginsburg’s motivations? Did she have the loftiest aspirations of preserving the Republic? Of course not. She screwed up. She wasn’t try to stop the next Hitler. She wasn’t carefully risking the legitimacy of the Court to save the Republic. She was repeating DNC talking points about Trump’s tax returns. And she admitted it.
On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.
As I told the WSJ Law Blog, expressing regret (there was no apology) conceded that her statements were inappropriate.
In a follow-up interview with Nina Totenberg, Ginsburg repeated that she erred:
RUTH BADER GINSBURG: Because it was incautious. I said something I should not have said, and I made a statement that reads, on reflection, my recent remarks and response to press inquiries were ill-advised. I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect.
TOTENBERG: I ask Ginsburg if she had just goofed.
GINSBURG: I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.
Over the past few years, Ginsburg has been showered in such sycophantic adoration, she hubristically thought she could do no wrong. As I wrote following Hobby Lobby, “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.” But with her most recent remarks, she crossed the line–and she admitted it.
This entire exercise teaches an important lesson about motivated reasoning. Sometimes, the real explanation is the most obvious one.
For easy reference, please see a post I wrote last year, “The Seven Stages of Criticizing Justice Ginsburg’s Extrajudicial Statements.” I think I captured all the various criticisms I get when discussing the extrajudicial statements of RBG.