[Cross-posted from The Faculty Lounge]
This morning's New York Times has a "Room for Debate" column titled "Can a Supreme Court Justice Denounce a Candidate," with short essays by Paul Butler, Steve Gillers, and Erwin Chemerinsky. Butler and Chemerinsky defend Justice Ginsburg, and Gillers criticizes her.
I agree with Gillers, of course, and Butler's argument is plausible. Chemerinsky, I think, gets it completely wrong when it comes to Ginsburg's denunciation of Trump:
Nor do I believe that such restrictions are constitutional or desirable. The First Amendment is based on the strong presumption that more speech is beneficial because it means we are all better informed. I think it is valuable for people to hear what the justices have to say on important issues. As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views. We are in a relatively new era of public statements by justices, and I applaud it.
It is well understood in cognition science that the articulation of an opinion solidifies it. Thus, judges who announce their views will tend to stick to them. Chemerinsky seems to think that a judge's opinions are innate and unchangeable, and thus might as well be announced, but that is an incorrect understanding of cognition. The statement of a position is a new fact that has a continuing impact on the judge's decision making. This is called "anchoring," and it is a widely recognized phenomenon in psychology.
In the case of Donald Trump, of course, Ginsburg's disapproval probably could not be intensified, so "anchoring" is not an issue. But there are two other problems.
First, Ginsburg speaks with the authority of a Supreme Court justice, and she might therefore influence voters (perhaps Bernie people who would otherwise vote for Jill Stein). This compromises the neutrality of the Court, and threatens to reduce it to another political branch of government. The Constitution provides life tenure for justices in order to insulate them from politics, not to provide them with a political platform. Cherminsky brushes this off by saying that "The judicial code of ethics says that judges are not to endorse or oppose candidates for elected office. But these provisions do not apply to Supreme Court justices." This argument is circular. The Code of Conduct is non-binding on justices only because they have chosen not to adopt it. It nonetheless represents the standards followed by ever other judge in the United States.
But Chemerinsky's position has a bigger problem than that. Ginsburg said that she might have to "move to New Zealand" if Trump were elected. Now, she might nonetheless be capable of fairness toward Trump, should his electoral fate come before the Court -- but half of the electorate would not believe it. This is not a matter of disclosing bias, but rather of creating an almost irrefutable appearance of bias even in its absence. This damages the Court as an institution by weakening public support, even in situations where the decisions have been impartial (to the extent that can ever be known).
Chemerinsky believes that it is better to know about a judge's biases than to leave them hidden, but he ignores the problems of (1) strengthening biases unnecessarily, and (2) damaging the Court's reputation for impartiality, even in situations where decisions may be fairly rendered.