The Subtext of Ruth Bader Ginsburg’s Improper Attacks on Donald Trump

Supreme Court Justice Ruth Bader Ginsburg during intermission at The Kennedy Center Honors, Dec. 6, 2015 in Washington, D.C.

Chris Kleponis/Getty Images

Ruth Bader Ginsburg initiated a potent little throw-down with presumptive GOP presidential nominee Donald Trump last week, and both her detractors and defenders have been surprised to observe that she’s doubled down in the days since. First she told the Associated Press that she didn’t even want to “think about” the prospect of a Trump presidency and the New York Times that a Trump presidency was the kind of thing that would have driven her late husband to say they should move to New Zealand.*This week she cheerfully told Joan Biskupic at CNN that Trump is a “faker” who makes things up as he goes along. True to form, Trump has now tweeted that that Ginsburg should step down because “her mind is shot.”

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

With the exception of a handful of RBG fans who take the position that she should say whatever it is she wants because she is generally excellent, few on the left have found much to cheer about in Ginsburg’s gloves-off candor. As the editorial pages of the New York Times and the Washington Post have argued, it is unseemly and also perilous for the judicial branch for Ginsburg to—as the Times put it—fling herself “into the mosh pit.” Even her staunchest defenders on the Hill are more or less baffled. Some have suggested the only thing you need to understand about this story is that Notorious RBG is 83 years old.

There can be no disputing that this conduct was improper under the Code of Conduct for U.S. Judges, which prohibits judges from endorsing or opposing a candidate for office, and under basic conventions that prohibit judges from overt politicking during election season. We can debate how improper it actually was, but it’s clear she upset the norms that we generally ask judges to respect. And with all due respect, it’s not a legitimate counterargument to claim that it’s OK because Ginsburg is on a lot of tote bags and T-shirts sporting a crown.

The serious arguments in favor of Ginsburg’s conduct are that (1) the nation faces an unparalleled existential threat, at the nomination of a man who imperils the very rule of law and (2) nobody really believes judges are impartial anyhow, so why shouldn’t we celebrate her for ripping off the umpire mask and telling it like it is.

Under the first theory, Ginsburg is correct to expend whatever moral capital she has accrued to say out loud what most politicians are afraid to say, because we are in an extraordinary moment in history, a terrifying period of racism, xenophobia, and violence, and it’s incumbent on even traditionally temperate citizens to speak out. According to this view, the failure to condemn Trump would be its own form of cowardice, and Ginsburg only did what a sane person facing a fascist leader should do. Under the second theory, nobody over age 7 really thinks judges have no political preferences, and it’s better to have them laid bare than hidden under flimsy claims of oracular impartiality.

Ginsburg was also saying that the stakes for this election could not be higher with respect to the composition of the court itself.

I have a great deal of respect for the first argument, and somewhat less for the second. The American people aren’t asking their judges and justices to lie to them about personal politics, so much as asking that there be a place where this type of revelation be tempered for the greater good. But there is a third important reason Ginsburg may have spoken out, and it’s getting less attention than it probably deserves: She may be trying to speak on behalf of the judicial branch itself, a branch that has been almost completely silent in the face of six brutal months of attacks from the right.

It started on the day of Justice Antonin Scalia’s death, when Republican officials immediately stated that they would not fill his vacant seat for purely partisan reasons. In response to these attacks the court was silent. It continued with an assault on the judicial branch by Sen. Chuck Grassley, who claimed that the Roberts Court is openly partisan. In response to this criticism the court was silent. Then there was the contemptuous Republican dismissal of the Merrick Garland nomination, an unparalleled act of disrespect for the president and the high court, shown by those who wouldn’t even offer a respected jurist a hearing. The response from the court? Silence. Then came the fatuous GOP claims that it would not affect the court to be short-staffed for nearly a year. In response the court was silent—with the exception of Justice Ginsburg, who stated at the end of May that the court could not do its job effectively with only eight members. And then there were Trump’s vicious and baseless attacks on a respected federal judge whom Trump claimed was biased against him because he was Mexican (he isn’t) and that all Mexicans are biased against Trump because of his stupid wall. Again, the formal response from the entire judicial branch? Silence. Silence in the face of attacks on the judicial branch is what judges do best, and they’ve made an art form of it this year.

If you look carefully at Ginsburg’s statements this past week, she wasn’t merely taking potshots at Trump. She was also simply taking Republicans in the Senate to task for refusing to even hold a hearing for Garland, a statement we have yet to hear from anyone of her stature in the judicial branch. This obstruction has been an unparalleled act of disrespect toward her court, and yet nobody on that court aside from her has said so. Ginsburg was also saying that the stakes for this election could not be higher with respect to the composition of the court itself, and that whatever norms and customs preclude judges from acknowledging that out loud cannot be more urgent than the future of the court itself.

In one sense Ginsburg, with her war on Trump, became exactly the kind of politicized judicial actor Grassley had once wrongly accused judges like her of being. In another sense, by speaking up for a judicial branch that has absorbed one body blow after another in recent months, in stoic squint-eyed black-robed fashion, she did nothing but level the playing field. If the court is really going to be fair game in the nihilist rush to break government, she is signaling that the court may just need to pick up arms and fight back.

I’m in no way confident that Ginsburg would have said what she said were it not for the fact that Trump’s contempt for her lifelong project of protecting women from people like himself terrifies her. She is right to be terrified. I probably still would have advised her to steer clear, simply because I am old-school when it comes to questions of judicial conduct and appearances. But what Justice Ginsburg is saying in defense of judicial independence writ large may be more important than whatever harm she may have done to the prestige of the court. Even moreso in a political moment where nobody seems to care about a 4-4 court and a growing raft of judicial vacancies in the lower courts. And to date, nobody of her stature or moral authority has said it: It’s the very invisibility of the court in the day-to-day life of this country that made it such an easy target for Senate Republicans this year. Notorious RBG has made the court a front-page story again. This is terrible for the court. But the alternative—more accrued insults and slurs and blows met in silence—could have been worse.

*Correction, July 13, 2016:This article originially misidentified Ruth Bader Ginsburg’s late husband as her ex-husband. (Return.)