In a statement on Thursday, Supreme Court justice Ruth Bader Ginsburg apologized (sort of?) for being mean to Donald Trump. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” she said. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
Actually, that isn’t an apology at all—although Trump will no doubt crow about having exacted one from the much-adored liberal. Her comments were ill-advised, in so far as having made them has created yet another circumstance in which Trump can present himself as a victim, and this will also cause problems if there’s any litigation over the election that reaches the court. But “I regret making them” means something rather different than “Making them was wrong.”
Is Supreme Court Justice Ruth Bader Ginsburg going to apologize to me for her misconduct? Big mistake by an incompetent judge!— Donald J. Trump (@realDonaldTrump) July 13, 2016
There are not actually any rules or laws governing what Supreme Court justices can or cannot publicly comment on—though there are such rules for judges in lower courts—which is to say that this whole kerfuffle has been predicated on preserving a set of rules the foundation for which is far more arbitrary.
Indeed, the purported rules of Supreme Court decorum (“Judges should avoid commenting on a candidate for public office”) are premised on candidates who themselves observe political norms. Most people, it seems fair to say, would agree that there are certain people and ideas that it would be appropriate for a justice to denounce—like, say, banning adherents of a particular religion entry into the United States. The policies Donald Trump is advocating are objectively antithetical to democratic norms. And sure, maybe they’re popular, but that’s all the more reason to question them.
Unless justices are obligated to never speak out about anything that could be possibly be described as political—which, obviously, given how many speeches Justice Antonin Scalia gave about all sorts of political issues, is not something anyone really believes—the backlash against Ginsburg (from sources as diverse as Senate majority leader Mitch McConnell to the New York Times and Washington Post editorial boards) is either manufactured or misdirected. In fact, despite their editorial board’s investment in maintaining political decorum, reporters for both the Times and the Post have done a very good job covering Trump for what he is—a nihilistic megalomaniac preying upon racial anxiety and xenophobia—rather than one side of a balanced debate.
More to the point, though, what this panic is about is not even Ginsburg’s actual impartiality but maintaining the appearance of impartiality. “In the future I will be more circumspect,” the justice said in her statement. But being circumspect about what she thinks or believes, while it will in all likelihood make for less hassle—does not change the fact of what she thinks or believes.
Still, it’s important to have myths.