In the midst of the Republican National Convention with numerous politicians, pundits and C-list celebrities focusing their partisan animus on Hillary Clinton and all manner of things Democrat and liberal it’s important to take a look back on something which to this point has received very little attention at the RNC. The comments of Supreme Court Justice Ruth Bader Ginsburg last week regarding her impression of then-presumptive Republican nominee Donald Trump quickly escalated to controversy, then diminished following her apology and to this point has seemingly dissipated beyond editorials on the proper political place of the Supreme Court. Some have criticized Justice Ginsburg for her blunt expression of dismay at the possibility of a Trump administration, some even calling for her resignation. Others have defended her comments, even if acknowledging they were poor judgement. The only thing on which most seem to agree is that it is no surprise the Justice breaking this political/judicial barrier was Ginsburg. But really, are the comments truly a big deal if the barrier is of false construction?
To quickly review, three separate times early last week Justice Ginsburg publicly discussed her view of the presidential race, most importantly and controversially, her view of Donald Trump. She declared she “can’t imagine what the country would be — with Donald Trump as our president” and didn’t “want to think about that possibility”, calling him “a faker” with “an ego” who “has no consistency about him”. Last Thursday Ginsburg apologized, saying her remarks were “ill advised” and declaring “judges should avoid commenting on a candidate for public office”. Perhaps her words were imprudent and inappropriate given her position on the bench. However, notably she apologized for making the comments, not for the comments themselves. This, at least implicitly, establishes her on-going apprehension at the possibility of a Trump presidential victory. So why apologize except to satiate those who believe in an apolitical Court? In other words, it was a political apology. And it’s not like the politics start there.
To begin, to declare a position subject to Senate confirmation apolitical is a bit disingenuous. It may be argued that these confirmation hearings are to delve into the professional qualifications and personal past of the nominee. However, this belies the relatively recent practice (since 1955) of questioning nominees on their judicial views. Furthermore, since 1975 the median number of days from nomination to final Senate vote is 71 days with the median hours questioned being 20. Why the extensive period to judge the legal qualifications of the nominee? Why question their judicial views unless there is concern over political leanings? Why do Republicans bemoan the liberal tendencies of the court, Democrats express concern over a conservative Court and pundits decry the need for a balanced Court?
In much of the media analysis of Ginsburg’s comments it is argued that people don’t so much believe justices are actually apolitical so much as they need justices to be apolitical. Therefore, Ginsburg didn’t deprive people of the belief of apolitical Justices so much as fractured peoples’ perception of an independent judiciary. But independent of what? The Supreme Court is independent of the other branches of government, not from politics. If this were true there wouldn’t be calls of “activist” judges or outcry from Congress following the decision of the Supreme Court to not overturn aspects of Obamacare. The Supreme Court is conceived to be independent of outside political machinations (although this is not always true), but it cannot be divorced from the internal political judgements of individual Justices.
A Segal-Cover score is an attempt to measure the “perceived qualifications and ideology” of Supreme Court justices. The data available cover all nominees from 1937 to 2010 and the scores of these nominees have been found to be strongly correlated with the subsequent votes of the justices. Because the scores are based on newspaper editorials written prior to a nominee being confirmed the Segal-Cover measure is considered a reliable, independent measure of the ideological values of Supreme Court justices. Looking at the data there is a wide range of ideological scores (0-1, most conservative to most liberal) for those confirmed nominees, ranging from 0.000 for Antonin Scalia to 1.000 for a few nominees, with middle-range values across the spectrum in-between. If these nominees were confirmed it is probably a fair assumption as to their legal qualifications. But if the assignment of the Supreme Court is merely to make legal decisions, why is there ideological heterogeneity? For that matter, why does precedent get overturned?
In short, the law is subjective. This notion is manifested in the very existence of the Supreme Court. Article III of the United States Constitution states the Supreme Court, and lower federal courts, have the power to interpret the law outside the influence of other branches of government. This need to have independent arbiters with the ability to define what laws, especially the Constitution, mean denotes the importance of individual judgement in jurisprudence. Many scholars argue that the nature and purpose of the Constitution is to be a “living document”, to be appropriately interpreted and applied according to the needs of the time. Thereby, the law changes. And the very nature of the Supreme Court, in interpreting the Constitution, in the types of cases taken by the Supreme Court, in the publicized opinions written by justices, to the fact that there have historically only been nine justices, determines the consequence of a justices individual judgement on how the law changes.
So what determines that individual judgement? Most simplistically, judgement and decision-making is composed from an innumerable combination of individual experiences, various sociological factors, geography, personal background, genetics and numerous other factors which combine to form associative pathways in the mind, beginning at a very young age, if not before birth. These pathways are then both emotional and rational, to the point where what an individual may consider “rational”, may consider “logical”, what decisions result in the greatest “utility”, cannot be disassociated from emotional considerations. As individuals become older and more educated these pathways tend to effectively crystallize, new information becoming associated with existing pathways and integrated into existing opinion. In other words, opinions don’t change over time, instead they are largely reinforced through the sheer power of the human mind. As a result, it may be expected that Supreme Court nominees come into the process with well-established prior beliefs, both politically and legally. But as demonstrated by the Segal-Cover scores as well as the general lack of effect of gender, race, educational background or religious views on jurisprudence, the personal cannot be distinguished from the legal. No one factor or even two determine an individual’s belief system and attitudes, so justices who share a similar background or race or education do not necessarily share the same beliefs and attitudes, which is reflected in their interpretation of the law.
What does this mean in terms of Ruth Bader Ginsburg, the Supreme Court and politics? First, the law is political. Justices have personal belief systems and political attitudes much like anyone else, only much stronger in all likelihood than the general public. These beliefs and attitudes naturally have an effect on decision-making. The nature of the Supreme Court in hearing controversial cases and cases where the law may be murky determines that these beliefs and attitudes will have a greater bearing on their decisions. Second, very few, if any, credible sources have argued that Ginsburg’s mind has simply gone, that she is no longer able to do her job as the result of cognitive decline. Many have pondered the consequence of her comments if another case such as Gore v. Bush comes before the Court, now involving Donald Trump. But if her mind has not slipped and she may still be considered a legal expert, why would her legal opinion be questioned? Does giving voice to an opinion held prior somehow diminish cognitive capacity? Or did Ginsburg’s opinion of Donald Trump not actually come into existence until she spoke those words? When she presided over Gore v. Bush did she not have an opinion on either candidate? It is absurd to believe a justice’s personal opinion of an individual influences their ability to interpret the law. However, it is also absurd to believe that interpretation isn’t influenced by the individual justice.