There couldn’t have been a more unlikely pairing than Justice Antonin Scalia and Justice Ruth Bader Ginsburg. Scalia was a bombastic Reagan appointee known for his rhetorical verve and spicy language. Ginsburg was a reserved, no-nonsense Clinton appointee who rarely made headlines. He was a textualist who fought for a minimalist role for the Court and cast a leery eye at anyone attempting to modernize the Founders’ intent. She, a judicial activist who seems to believe that the Court can do what the legislature cannot so long as a right can be read into the Constitution.
And yet. They shared a love of opera. They were travel buddies. He famously shared New Year’s Eve with the Ginsburg family, where one guest recalled, “Scalia kills it and Marty [Ruth’s husband] cooks it.”
“As annoyed as you might be about his zinging dissent, he’s so utterly charming, so amusing, so sometimes outrageous, you can’t help but say, ‘I’m glad that he’s my friend or he’s my colleague,’” Ginsburg said of him.
Their relationship was instructive of how disagreement should work in Washington. It was strengthened by respectful debate. It existed in deference to the reverence for a larger institution. And they learned from each other, and in many ways were stronger because they did.
Disappointingly, just months after her good friend’s death, Ginsburg seems to have already forgotten one of the key lessons of her relationship with Scalia. She’s moved beyond honest disagreement to fall into the same partisan trap that has ensnared nearly everyone in the nation’s capital. She’s put down her sword in the battle of ideas, and instead picked up a banner in the war of parties and personalities.
“I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president,” Ginsburg told the New York Times on Sunday. She went on to remember something her husband said at such times, “Now it’s time for us to move to New Zealand.”
Earlier, in an interview with the Associated Press, when asked what would happen if Donald Trump won, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”
And on Monday, she issued her most pointed comments, calling Trump “a faker,” who “has no consistency about him.
“He really has an ego,” the justice said. “How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
The press was not gentle with Ginsburg over her surprising comments, which compromise her ability to serve as an impartial justice on the nation’s highest court.
The Washington Post’s Aaron Blake argued that, “It’s hard if not impossible to find a direct analog to what Ginsburg has said in recent days.” He said all of the Supreme Court experts he spoke to were “unaware of any justices getting so directly and vocally involved — or involved at all, really — in a presidential campaign.”
The Wall Street Journal argued that Ginsburg’s comments made it seem as though the Court “is a purely political body,” which “raises questions about her judgment, her temperament, and her continuing capacity to serve as a judge.”
And the New York Times editorial board said it called her “commitment to impartiality into question” and said that “Washington is more than partisan enough without the spectacle a Supreme Court justice flinging herself into the mosh pit.”
When the editors of the Times are telling liberal icon Ginsburg that it’s time to stop it with the partisan commentary, then you know something has really gotten out of hand. Sure, they probably just want to protect her integrity should another Bush v. Gore-type scenario come down the pike. But whatever the reason, the message is clear: You’re a Supreme Court justice. Start acting like it.
Photo Credit: Wake Forest University Law School. See more HERE.