Federal Courts and Nominations

A Supreme Court where conservatives don’t apologize

By Philip Diehl

Last month, Supreme Court Justice Ruth Bader Ginsburg set off a storm of criticism by calling now-GOP nominee Donald Trump “inconsistent” and “egotistical,” and saying she couldn’t “imagine what the country would be” if Trump were elected president.

Conservatives were not alone in lambasting Ginsburg for violating norms against Supreme Court justices wading into the political fray. Mainstream media and some liberals joined in, though in more measured tones. A few days later, the 83-year-old justice walked back her comments, saying she regretted them and that they were “ill-advised.”

Yes, Ginsburg was wrong, wrong to speak so frankly — and wrong to back down. She would have been better served to have said, “My dear friend, Antoni[n] Scalia, sometimes expressed opinions that ruffled feathers, but he never backed down and he never apologized. I’m going to follow his example.”

Conservatives relish the rhetoric of their firebrands. They know politics is a contact sport, and they don’t allow the thin veneer of “norms” to stand in the way of taking down opponents. Liberals, on the other hand, feel constrained to fight by Marquess of Queensberry Rules. Cold-cock a gentleman as he’s removing his frock coat? What would Lord Grantham say?

How does Ginsburg’s transgression stack up against those of the court’s conservatives?

Scalia was, no doubt, the court’s most vocal critic of President Obama and liberalism. In his last years on the bench, the justice adopted a pattern of contemptuous and mocking rhetoric against the administration, evolving from a probing skeptic to a “partisan cheerleader” in the words of Doug Kendall, president of the Constitutional Accountability Center.

Scalia’s most direct assault on the president came in Arizona v. U.S., where he wrote that Obama’s claim to discretion in enforcing immigration law “boggles the mind.” Judge Richard Posner, a conservative on the 7th U.S. Circuit Court of Appeals, called Scalia’s comments “fighting words” of a kind that might be “quoted in campaign ads.” He noted that the administration program Scalia criticized wasn’t at issue in the case before the court and wasn’t even announced until two months after oral arguments in the case. Then in November, Scalia turned up his flamethrower by arguing that the administration’s logic in defense of gay marriage rights could be used to protect child molesters.

Or take the example of Justice Samuel Alito. During the 2010 State of the Union Address, Alito mouthed the words “not true” in response to Obama’s criticism of the court’s decision in Citizens United v. Federal Election Commission a few days earlier. The president said the ruling would “open the floodgates for special interests … to spend without limits in our elections.” His prediction has been borne out.

Alito’s ill-founded dissent against the president was all the more extraordinary in that the justices, by tradition, sit on their hands during the address, giving no hint of their emotions or opinions. For his part, Obama was castigated by Republicans for his “unprecedented” public criticism of the court. Few commentators have recognized the irony of this criticism considering the decades of rhetoric aimed against “activist judges” (meaning Democratic judges) by GOP presidents.

Only a few weeks before Ginsburg weighed in, Trump demonstrated profound disrespect for the Constitution’s separation of powers and the rule of law by challenging the fairness of a federal judge in a case where the billionaire is a defendant. In context, Ginsburg’s comments were an admonition about the danger he poses to an independent judiciary, a peril a Supreme Court justice might be forgiven for broaching.

Considering the other adjectives Ginsburg might have employed, her description of Trump as inconsistent and egotistical was mild, and it paled in comparison to her colleagues’ behavior. Moreover, Ginsburg’s comments were directed against a candidate for the presidency. Scalia and Alito dissed a sitting president in their official capacity as members of the court, and not in defense of constitutional principles, as Ginsburg did, but over policy and ideological differences. Alito’s affront was especially egregious since he expressed his dissent at a state occasion in front of cameras for the world to see.

Neither Scalia nor Alito expressed any regret for their actions, and there is reasonable doubt that they considered their partisanship “ill-advised.” They were applauded by conservatives who share the justices’ disregard for a president whose legitimacy many conservatives have never acknowledged.

It’s a shame that some who agree with Justice Ginsburg’s appraisal of Donald Trump didn’t come to her defense when she spoke her mind. Instead, they defended norms that have long since been abandoned by the opposition. One would think that 16 years after Bush v. Gore, they would have realized what a quaint vestige of bygone days those rules of engagement have become.

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