Outraged About Ginsburg’s Comments? Supreme Court Justices Have Always Voiced Political Opinions

Donald Trump is freaking out over statements made by Supreme Court Justice Ruth Bader Ginsburg.

Ginsburg didn’t hold back during a New York Times interview published Monday. “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.

Trump, naturally, hopped on Twitter to complain.

Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!

— Donald J. Trump (@realDonaldTrump) July 13, 2016

Speaker of the House Paul Ryan called Ginsburg’s comments “out of place” during a CNN Town Hall on Tuesday.

But even after after a wave of criticism, including from “liberal” outlets, Ginsburg refused to walk back her comments. On Monday, she called Trump a “faker.”

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that,” she said in her chambers.

The backlash over Ginsburg’s comments is not surprising, given Trump’s history of trying to de-legitimize the judicial system (especially when it applies to him). But his argument that Ginsburg’s comments disqualifies her from being an unbiased judge is a weak one: The ideological leanings of the justices are well known by not only their decisions (its kind of their job to give opinions), but also their public statements.

Unlike Ginsburg’s comments about Trump, justices have made plenty of statements in the past that relate directly to cases before them in the court.

Antonin Scalia was the poster boy for this behavior – the conservative legal icon frequently toured between law schools, book stores, and other gatherings, debating all comers on a wide range of topics. We knew how he felt about the death penalty, abortion and homosexuality:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” he said in 2012.

“What minorities deserve protection? What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.” he said in 2015.

Scalia’s defense of his homophobic remarks could easily be used to defend Ginsburg’s Trump comments — not that Ginsburg would use his argument, despite her storied, decades-long friendship with Scalia.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said in 2012 after a gay Princeton student asked him why he equated laws banning sodomy with laws that ban man-on-animal sex and murder.

Ginsburg herself has long been known for her frankness. Joan Biskupic, the journalist who reported Ginsburg’s statements on Trump, writes that, having met with her “on a regular basis for more than a decade,” he “found her response classic.”

Biskupic elaborates:

I have witnessed her off-bench bluntness many times through the years.  During 2009 oral arguments in a case involving a 13-year-old Arizona girl who had been strip-searched by school administrators looking for drugs, she was troubled that some male justices played down any harm to the student. “They have never been a 13-year-old girl,” Ginsburg told me. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Earlier in 2009, she was being treated for pancreatic cancer yet made sure to attend President Barack Obama’s televised speech to a joint session of Congress, explaining that she wanted people to know the Supreme Court was not all men. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.” She was referring to Sen. Jim Bunning, a Kentucky Republican, who had said she would likely die within nine months from the pancreatic cancer. Bunning later apologized.

 

As the first Latina to reach the court, Justice Sonya Sotomayor fiercely defends her use of personal political reflection, based in experiences that she believes differ from those of the other justices, in her arguments. The issue of affirmative action is especially important to Sotomayor. In her 2013 memoir, she wrote:

Bloomberg‘s Noah Feldman offers Chief Justice John Marshall, who served as John Adams’s secretary of state while he was a chief justice, as proof that America’s founding generation was not “obsessed with the idea that justices have to be outside the reach of politics.”

Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.

Two of his most revered opinions, Marbury v. Madison and McCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.

In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.

Maybe conservatives shouldn’t argue about the integrity of the Court while in their fourth month of refusing to give it a ninth justice.

Photo: AFP Photo/Tim Sloan