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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.

She goofed.

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.

Among the the other things the Inglorious RBG said in her interview with the New York Times, she offered a breakdown of the votes in the four-to-four affirmance in U.S. v. Texas.

A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.

“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.

Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.

She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writingssuggested that he might have found the argument attractive.

“That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.

I find unbecoming her phrasing about “what would have happened had Justice Scalia remained with us.” Some friend, huh.

But more importantly, we get an insight into the votes. It was widely assumed (by me) that the Court split 4-4 on standing. But maybe the Justices who were in the majority in Massachusetts v. EPA–Breyer and Ginsburg–were okay with states challenging the federal government. Eliminating the power of states to sue would do “damage,” RBG said. Maybe (as I’ve long speculated), liberals want states to have this power in the event of a Republican presidency. In any event, as she noted this case isn’t over. It’s coming back up. And she has already tipped her hand that she thinks there is standing. Texas’s case for standing was far, far stronger than Massachusetts’s.

RBG also praised the 4-4 affirmance in Freidrichs.

One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedentthat allowed public unions to charge nonmembers fees to pay for collective bargaining.

Who said this gridlock was all bad for RBG?

Ruth Bader Ginsburg has lost it. Her recent comments are absolutely beyond the pale–even for her outrageous self. The other justices should hold an intervention, and tell her to be quiet or step down. This isn’t funny anymore. She is making overtly political statements about the presidential election that are absolutely unbecoming of a Justice of the Supreme Court. She is expressly dragging the Court into a political arena they would rather stay out of. Her comments also call into question her ability to adjudicate any case involving the Trump Administration. I say this as someone who largely agrees with her prognostications of what a Trump presidency would mean. She needs to stop. But she wont, because RBG loves the limelight, and reporters are happy to write down the insane things she says.

On Thursday, she told Mark Sherman she didn’t want to think of what a Trump presidency would mean, and used the female pronoun “she” to refer to the next President (obviously referring to Jill Stein, right?).

In an interview Thursday in her court office, the 83-year-old justice and leader of the court’s liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

That includes the future of the high court itself, on which she is the oldest justice. Two justices, Anthony Kennedy and Stephen Breyer, are in their late 70s.

“It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg said, smiling.

On Friday, she told Adam Liptak that she couldn’t think of what the country would be like with a Trump presidency, and said she would consider retiring to New Zealand.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Retirement to New Zealand, or anywhere else, would be a good idea for the Inglorious RBG.

Last week, Judge Posner caused quite an uproar with his Slate column suggesting that studying the Constitution was a pointless exercise.

And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21^stcentury. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14^th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18^th-century guys were worrying about. In short, let’s not let the dead bury the living.

National Review hosted a symposium on Justice Thomas’s twenty-fifth anniversary on the Court, with contributions from Randy Barnett, Richard Epstein, John Yoo, and many others. My submission focused on Justice Thomas’s aspiration to revisit old precedents that conflict with original meaning in “an appropriate case.”

Justice Clarence Thomas’s quarter century on the Supreme Court has been defined by a principled devotion to understanding the Constitution’s original meaning and applying it to modern-day cases. His fidelity to text and history is embodied in a phrase he has used in 16 concurring or dissenting opinions: In “an appropriate case,” he would be willing to reconsider the Court’s longstanding precedents that cannot be reconciled with originalism. An example from his very first week on the bench illustrates his steadfast commitment to the Constitution.

After a bruising confirmation battle, Justice Thomas was sworn in to the Court on October 23, 1991. By that point, he had already missed all of the October cases and had to scramble to prepare for the next batch, which would be heard ten days later. On November 5, Thomas’s second day on the bench, the Court heard arguments in White v. Illinois. The facts were unsavory. A four-year-old told her babysitter that Randall White, who had just fled her bedroom, “touch[ed] her in the wrong places.” During White’s trial, the toddler was unable to testify due to “emotional difficulty,” so the state introduced as evidence the babysitter’s out-of-court statement. The trial court overruled the defendant’s objection that, under the Sixth Amendment, he had the right to confront his accuser. With the babysitter’s statement as evidence, White was convicted.

A few days after White was argued, Justice Thomas attended his first conference. The majority of the Court voted against White. Under settled precedent, the babysitter’s statement was admissible because it was “reliable.” Only a few days into the job, it would have been easy enough for Thomas to simply go along to get along. But from the very beginning, Thomas pursued the original meaning of the Constitution, even if that history conflicted with the Court’s settled precedents. This was true regardless of his personal preferences. Even though the law-and-order justice likely had little sympathy for a child molester, the procedural protections of the Sixth Amendment prevailed on him.

In an eight-page dissenting opinion, joined by Justice Scalia, Justice Thomas wrote that his colleagues’ “Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself.” Realizing that he was only in dissent, Thomas wrote that he would reconsider this doctrine “in an appropriate case.” In the meantime, lawyers, scholars, and judges can study and consider the persuasive arguments from Thomas and Scalia. Thirteen years later, that “appropriate case” would arrive. In Crawford v. Washington, the Court voted to restore the Confrontation Clause’s original meaning and jettison the postmodern “reliability” framework.

From his first week on the bench, Justice Thomas understood that a single opinion cannot right the law right away. But given reason, logic, and time, “in an appropriate case” the Constitution will ultimately prevail. Thomas’s fidelity to the rule of law and the power of courts should inspire us all, and hopefully several more of his colleagues, for another quarter century to come.