[cross posted from The Faculty Lounge]
At Balkinization, Mark Tushnet writes,
To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases.
Implicit in this argument is the assumption that all sophisticated people recognize the political intentions of judges, so we might as well pull back the curtain by encouraging them. to simply come out and campaign (or accepting that they will). Erwin Chemerinsky says that he is looking forward to that.
No one likes facades (well, perhaps with the exception of symbolic interactionists), but let me suggest another way of looking at it. We may not expect judges to be free from political opinions, but we do expect them to try to put them aside when judging. Is that always possible? Of course not. Is it ever possible? Resoundingly, yes.
If you don't believe that judges can put politics aside, at least now and then, how do you explain Justice Roberts's vote in the ACA cases? Or, for that matter, Justice Breyer's vote on the full-state recount issue in Bush v. Gore?
Political neutrality is not a facade, it's an aspiration. When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg's recent remarks.
UPDATE: Noah Feldman is another enabler. Writing on Bloomberg, he observes that "nothing in the Constitution . . . demands that the justice be nonpartisan." That is true but irrelevant, given the that Constitution did not contemplate the existence of political parties at all. One of "injuries and usurpations" listed in the Declaration of Independence, however, was King George's control of the judiciary, which led to excessive identification of judges with the then-existing executive branch.
The Constitution thus created life tenure for Supreme Court justices in order to remove them from political domination. Feldman states that "life tenure guarantees independence, not neutrality," but in this instance that is a non-sequitur. Why do we care about independence, if not to promote neutrality?
The arguments against Ginsburg’s candor almost all come down to the idea that she should have respected propriety and upheld the myth of judicial neutrality. But who, exactly, believes in that myth in the year 2016? It’s been 16 years since Bush v. Gore killed off any vestiges that might have existed.
I would prefer to think of Bush v. Gore as a warning, rather than a model to be followed. Should presidents after Nixon have authorized burglaries, on the ground that law-abiding presidencies are a myth? Should future Congresses impeach presidents for political reasons, on the ground that nobody trusts Congress anyhow? "In for a dime, in for a dollar" is not the right metric for judicial ethics, or any other sort of ethics.