Justice Ruth Bader Ginsburg’s scorning of Donald Trump, and his inevitable response, demonstrate the continued relevance of an old adage, one that Justice Ginsburg should have heeded: never wrestle with a pig, because you only get dirty, and the pig enjoys it. The lesson of that adage should not be lost on progressives who are now attempting to justify Ginsburg’s comments.
A few legal academics have defended Ginsburg by offering a sophisticated cynicism about the Supreme Court, arguing that no one really believes the “myth of judicial neutrality” anymore. The Court is already viewed as political, they say, and so Ginsburg’s comments didn’t really cross any new line. Other commentators argue that Trump is an existential threat to America as we know it, and so desperate times call for desperate measures. Their message is, in effect: bring it on.
But for progressives, buying into such thinking would be very foolish.
The danger of Ginsburg's comments is not that they reveal that justices, like all other people, have personal political preferences. The danger is that Ginsburg will be perceived correctly &ndash as having sought to use her very privileged position to influence the election. The authority of the judiciary depends on its perceived legitimacy, and its legitimacy in turn depends on its perceived integrity and fairness. The Court's public image and approval have suffered in recent years. Ginsburg's comments bring us closer to the day when the Supreme Court's decisions may be seen by a critical mass of Americans as no more worthy of respect or obedience than the pronouncements of any other political actor.
For decades, attacks on the credibility and legitimacy of an independent judiciary have been a leitmotif of the legal and political right. Southern racists did it in the 1950s to resist school desegregation. Christianist religious activists do it today to resist marriage equality. Appealing to the same “populist” resentments that Trump has harnessed, they have derided the very idea that unelected judges should be allowed to frustrate the will of the majority, as judges occasionally do, or to have the last word on controversial legal questions that divide our society.
Some progressives also play this game, arguing that the Supreme Court traditionally has been the enemy of everyday people. But the political right is far more committed to the project of judicial delegitimization – and, frankly, far better and more effective at it – than progressives ever could be. In law as well as politics, the right, far more than the left, has pursued the scorched-earth strategy of delegitimizing both people and institutions that prevent it from getting its way, painting opponents as not just wrong but as corrupt and driven by bad motives.
Most progressives are not nihilists about the law. They still believe that an independent judiciary – one that is respected, or at least regarded as legitimate, by most citizens – is fundamental to the American system of government. Yes, the conservative Supreme Court of recent years has delivered many decisions that disappointed progressives. Progressives criticize decisions like Citizens United (which unleashed money in politics) or Shelby County (which weakened the Voting Rights Act), and rightly so. They expose the hypocrisy and puncture the sanctimony of conservative-activist jurists like Antonin Scalia. But most stop short of arguing that these decisions call into doubt the very legitimacy of the Court itself.
Apologists for Justice Ginsburg are playing with fire, because if the Supreme Court were delegitimized, progressive values – especially civil rights and civil liberties -- would be the biggest losers.
Our Constitution, enforced by judges, enshrines fundamental rights and values. It thus stands as a bulwark against short-term political passions and tyranny of the majority. As the Supreme Court itself said in a landmark 1943 religious liberty case, one vital purpose of a Constitution, as enforced by judges, is to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Without an independent judiciary that is willing to enforce constitutional norms when the political process has been captured by interests hostile to equality and liberty, we would not have legal nationwide same-sex marriage. We would not have continued protection for a woman’s right to choose abortion, which the Court reaffirmed just this spring. Police could more easily troll through everything on your smartphone. Religious extremists in states like North Carolina and Mississippi would have no check on their ability to enact laws that assault the dignity of LGBT persons.
As Trump’s candidacy demonstrates, right-wing politics in its purest form seeks to prevail through bullying, demagoguery, and appeals to ignorance and the “poorly educated.” (As Trump himself observed, Justice Ginsburg’s foray into partisan commentary “only energizes my base even more.”)
But this is not a playing field that favors liberals. Justice Ginsburg is not going to win a battle of insults with Donald Trump, and progressives cannot afford to give up the firewall of an independent judiciary as protection against the worst impulses and excesses of our politics. Progressives do not want to live in a world where we have completely erased the line between politicians and judges.