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“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 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,” she “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:

“Much has changed since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”

Sotomayor has taken this sentiment to the court. In her dissent on Schuette v. Coalition to Defend Affirmative Action, she wrote: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No where are you really from?’”

Sotomayor’s opinion in a fourth amendment case on the validity of police stops was an explicitly political appeal. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in her dissent, on a case where a Utah man claimed he was unlawfully stopped by police. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

And besides: The Constitution does not prohibit Supreme Court Justices from expressing personal opinions.

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.

 

By: Germania Rodriguez, The National Memo, July 13, 2016

July 14, 2016 Posted by | Conservatives, Ruth Bader Ginsburg, SCOTUS | , , , , , , , | Leave a comment

“Ask Me No Questions If You Can’t Take The Answer”: Ruth Bader Ginsburg Abandons All Subtlety Towards Trump

Supreme Court Justice Ruth Bader Ginsburg dipped her toe into the political waters last week, conceding to the Associated Press that she’d rather not “think about” the possibility of a Donald Trump presidency. “If it should be,” she added, “then everything is up for grabs.”

A couple of days later, Ginsburg went just a little further while speaking to the New York Times. Reflecting again on a possible Trump administration, the justice said, “For the country, it could be four years. For the court, it could be – I don’t even want to contemplate that.” Echoing a sentiment from her late husband, Ginsburg said a Trump victory in November would mean “it’s time for us to move to New Zealand.”

Apparently, the more she answers these questions, the stronger Ginsburg’s feelings on the subject.

Supreme Court Justice Ruth Bader Ginsburg called Donald Trump “a faker” Monday night, doubling down on her critical comments about a potential Trump presidency.

“He has no consistency about him,” Ginsburg told CNN. “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.”

It’s at this point that objective observers have to start wondering whether Ginsburg is going further than she should.

I realize, of course, that justices’ ideologies are not exactly a secret. The fact that Ruth Bader Ginsburg wants to see Donald J. Trump lose should surprise literally no one. It’s a safe bet that Clarence Thomas is equally eager to see Hillary Clinton lose. There’s no great mystery here.

But as much as I admire and respect Ginsburg, critics are raising a legitimate question. If I’m being honest, I probably wouldn’t be at all pleased if, say, Samuel Alito started giving a series of media interviews, playing the role of election pundit and intervening in the electoral process. If the question today is whether Ginsburg is breaking with judicial protocol, fairness dictates that the answer is yes.

Paul Butler, a former federal prosecutor and a Georgetown University Law professor, wrote a piece for the New York Times defending the progressive justice for speaking her mind.

Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist – has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no. […]

When despots have ascended to power in other regimes, one wonders how judges should have responded. Should they have adhered to a code of silence while their country went to hell? Not on the watch of the Notorious R.B.G. She understands that if Trump wins, the rule of law is at risk.

I can appreciate the argument. I even want to agree with it. If Trump is a unique threat to the American political system and a genuine menace, it’s unreasonable to think people of good conscience should stay silent in the name of propriety.

But Ginsburg isn’t just another voter; she’s a sitting justice on the Supreme Court. If there were a crisis along the lines of the 2000 election, and the high court was asked to adjudicate a case related to this election’s outcome, would Americans have confidence of Ginsburg’s impartiality? Would she have to recuse herself, thus affecting the outcome?

I appreciate the broader context and the fact that Ginsburg may be understandably worried about her own role in sending the nation in a radical and regressive direction. But the fact remains, those who’ve said she’s going too far are raising a legitimate concern that is not easily dismissed.

 

By: Steve Benen, The Maddow Blog, July 12, 2016

July 13, 2016 Posted by | Donald Trump, Politics, Ruth Bader Ginsburg | , , , , , | Leave a comment

“Ruth Bader Ginsburg; Eight Is Not Enough”: An Equal Division Is Essentially The Same As A Denial Of Review

Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), feeling pressure over his role in an unprecedented Supreme Court blockade, wrote an op-ed in which he insisted the whole mess is unimportant. The “sky won’t fall” if the Supreme Court remains deadlocked for a year and a half – eight justices is plenty – so the Republicans’ unprecedented scheme isn’t worth all the fuss.

Actual justices on the high court appear to feel differently. Justice Ruth Bader Ginsburg acknowledged publicly yesterday that the institution she serves is, in fact, being hurt by having eight justices instead of nine. The Washington Post reported:

The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.

“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.

She added, “Eight, as you know, is not a good number for a multi-member court.”

Ginsburg is hardly the only one who’s noticed. Slate’s Dahlia Lithwick noted last week that the Supreme Court can pretend that “it can manage just fine with eight justices,” but the fact remains that the institution is struggling to do its job.

Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court.

The same week, the editorial board of the New York Times added, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved…. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.”

By all appearances, the Senate’s Republican majority doesn’t care – according to Sen. Orrin Hatch (R-Utah), it’s somehow fair to treat Merrick Garland unfairly – but they should.

 

By: Steve Benen, The Maddow Blog, May 27, 2016

May 28, 2016 Posted by | Chuck Grassley, Ruth Bader Ginsburg, Senate Republicans | , , , , , , | 1 Comment

“Oh, Please!”: Roy Moore Wants Ruth Bader Ginsburg Impeached

The U.S. Supreme Court probably won’t rule on marriage equality until the end of June, and when it does, Justice Ruth Bader Ginsburg is likely to side in support of equal-marriage rights.

For the right, this will be deeply annoying – not just because of conservative opposition to marriage equality in general, but also because much of the right believes Ginsburg shouldn’t be able to participate in the case at all. Right Wing Watch had this report this afternoon:

Alabama Chief Justice Roy Moore spoke with Family Research Council President Tony Perkins on Friday about his belief that states should “resist” a potential Supreme Court ruling on marriage equality, saying that Congress and the states should simply defy a court decision they disagree with by stating “that there is no right to redefine marriage” in the U.S. Constitution.

“We have justices on the Supreme Court right now who have actually performed same-sex marriages, Ginsburg and Kagan,” Moore continued. “Congress should do something about this.”

Such as? Moore raised the prospect of impeachment proceedings.

Perkins concluded, in reference to Ginsburg, “This is undermining the rule of law in our country and ushers in an age of chaos.”

Oh, please.

First, the idea that Ginsburg can’t consider the constitutional questions surrounding marriage rights because she’s performed wedding ceremonies is pretty silly.

Second, let’s not lose sight of the context here. Roy Moore, who was once expelled from state Supreme Court because he declared an ability to ignore federal court rulings he doesn’t like, continues to argue that Alabama is not bound by the federal judiciary.

There’s someone in this story who’s “undermining the rule of law in our country,” and trying to create “chaotic” conditions, but it’s clearly not Ruth Bader Ginsburg.

 

By: Steve Benen, The Maddow Blog, May 26, 2015

May 27, 2015 Posted by | Marriage Equality, Roy Moore, Ruth Bader Ginsburg | , , , , , , , , | Leave a comment

“More Consequential And Far-Reaching”: Why The Supreme Court Should Be The Biggest Issue Of The 2016 Campaign

Supreme Court justice and pop culture icon Ruth Bader Ginsburg left the hospital yesterday after having a heart stent implanted and expects to be back at work Monday. Despite various health issues over the years, Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court could be a bigger campaign issue in 2016 than ever before. It certainly ought to be.

Ordinarily, the Supreme Court is brought up almost as an afterthought in presidential campaigns. The potential for a swing in the court is used to motivate activists to volunteer and work hard, and the candidates usually have to answer a debate question or two about it, which they do in utterly predictable ways (“I’m just going to look for the best person for the job”). We don’t usually spend a great deal of time talking about what a change in the court is likely to mean. But the next president is highly likely to have the chance to engineer a swing in the court. The consequences for Americans’ lives will probably be more consequential and far-reaching than any other issue the candidates will be arguing about.

As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.

Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.

Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.

Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.

Whether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two. The implications are enormous. It’s not too early to start considering them.

 

By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 28, 2014

November 29, 2014 Posted by | Election 2016, Ruth Bader Ginsburg, U. S. Supreme Court | , , , , , , , | 2 Comments

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