In an astonishing editorial – astounding because of its source, not its content – entitled “Mr. Trump Is Right About Justice Ginsburg,” The New York Times on Wednesday, July 13, 2016, opined that “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.” As The Times noted, Supreme Court Justice Ginsburg three times in the preceding week not only let the nation know what she thinks about the prospect of Mr. Trump as a potential U.S. President, but did so in a way befitting a politician more than a U.S. Supreme Court Justice.
In a Sunday, July 10, 2016, interview with The Times, Justice Ginsburg had said that she “can’t imagine what the country would be” with Donald Trump as president, joking that if her husband were still alive they might be talking about moving to New Zealand. In an Associated Press interview that aired the preceding Friday, The Times wrote, Justice Ginsburg had said that in a Trump presidency, “everything is up for grabs.” And in a Monday, July 11, CNN interview, The Times noted, Justice Ginsburg had called Mr. Trump a “faker” and criticized his ego.
Any candidate for U.S. President can expect such comments – and worse – in partisan politics, of course. But as Mr. Trump responded on Tuesday, July 12, “it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly.” Judges – including United States Supreme Court justices – although appointed (or elected) through inherently political processes, are supposed to be above the political fray lest their decisions seem tainted.
To her partial credit, Justice Ginsburg later said that she regretted her remarks. In a statement issued through the Supreme Court’s press office on Thursday, July 14, she announced that “[o]n reflection, my recent remarks … were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.” She promised that “In the future I will be more circumspect.” But regretting an act does not erase it; the damage to the Court’s façade of impartiality has been done.
The shocking news, though, is neither that Justice Ginsburg spoke out nor that she later “regretted” her remarks. The shocking news is that The New York Times has actually agreed on something with Donald Trump.
Among the matters The Times cited are that the recent death of Justice Antonin Scalia and the advancing ages of several remaining justices make it “vital that the court remain outside the presidential process.” Just imagine, The Times continued, “if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?”
Some, of course, might question whether anyone can argue with a straight face that the Supreme Court’s only guide in deciding cases is the law. Whether one agrees or disagrees with cases such as National Federation of Independent Business v. Sebelius, King v. Burwell, Obergefell, or even Roe v. Wade as a matter of policy, it is difficult to argue that any of those decisions involves a straightforward interpretation of either the law or the Constitution.
But give the devil its due. On this occasion, at least, The New York Times got it right.