The Notorious RBG is certainly living up to her name. Following her remarks regarding Donald Trump -- namely that he is a "faker" and that she doesn't "want to think" about him being president -- the editorial boards of The New York Times and The Washington Post, hardly bodies that are quick to come to Trump's defense, criticized Justice Ginsburg. Slate's Mark Stern went as far as to say she "risked her legacy to insult Trump."
There's no question that Ginsburg violated the standard of judges refraining from politics; no one can dispute that. But let's hop off our constitutional plateau for a second. How can any serious student of the federal judiciary find these comments so egregious? How can anyone who watched Samuel Alito shake his head at President Obama during the State of the Union Address find Ginsburg's understated criticism out of line? How can anyone who lived through the Roberts Court's gutting of campaign finance law and evisceration of the Voting Rights Act suddenly scream foul when a justice speaks her mind?
Until now, nobody with a straight face could argue that the Supreme Court is entirely divorced from politics. In fact, with the legislative and executive branches effectively halted, the most transformative political moments of the Obama-era have occurred at the Court. Conservatives didn't complain when the Roberts Court ruled against President Obama's executive action on immigration, despite progressive arguments that it is clearly constitutional. Neither did liberals when the Supreme Court ruled in favor of same-sex marriage, despite conservative arguments that it was constitutional overreach.
So why now -- when a justice offers harmless criticism that many Americans likely agree with -- are we all suddenly concerned about the politicization of the federal judiciary? Shouldn't we be more concerned when that politicization affects actual lives in the form of opinions?
Long ago, Thomas Jefferson argued that "Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps." By now -- in the post-Citizens United, post-Hobby Lobby world -- we should recognize that judges are people too; their opinions show it time and again. It serves no good for us to become arbitrarily defensive when one of those opinions -- in the form of criticism of one of the most dangerous figures ever to appear on a ballot -- is especially valuable.