Supreme Court Justice Ruth Bader Ginsburg caused quite a stir recently when she offered some frank thoughts on presidential candidate Donald Trump. Much of the reaction was negative, with many observers considering such remarks inappropriate for a sitting justice.
It's indisputable that Justice Ginsburg's comments went far beyond what those in her position have typically offered. But was she really wrong to do what she did? And if so, why?
Historically, the general view has been that judges shouldn't sully themselves by wading into political elections, and that they should instead do their best to stay above the fray. One key reason for this view is that we want our judges to be neutral and unbiased, and to be free from partisan influence in their decision-making. The theory, presumably, is that judges who speak openly about their political views are more likely to allow those views to infect their decisions--or at least that decisions made by openly political judges are more likely to be perceived as politically influenced.
Do these concerns justify the constraints we've traditionally imposed in this area? I'm not sure they do.
First of all, it seems naïve to believe that muzzling our judges and justices will affect the degree to which their political views actually influence their decisions. Any given jurist almost certainly has strong views on a series of questions about how the country should be run. Most people do, and it would be odd to suggest that judges as a group don't. There's an inescapable possibility that these views will influence a judge's decisions, sometimes despite the judge's best efforts to the contrary. However strong that possibility is, it seems unlikely to be altered by whether a judge is or isn't allowed to talk about her political beliefs.
What about the other oft-stated reason--that we want to avoid the appearance of bias? This seems more convincing, at least on the surface. Courtroom battles tend to be intense, heated affairs, with losing parties and their supporters often feeling that they've been denied justice. If an openly political judge issues a ruling that's aligned with one of her preferred candidates or issues, it gives the adverse party an obvious opening to complain.
But we do that anyway. When there's a high-profile court decision--especially at the Supreme Court level, where court-watchers' competing views tend to be especially intense--many of us naturally blame a justice's political beliefs or lineage for what we consider a wrong decision. ("Of course he ruled that way--he's a conservative." "Of course that was her holding--she's a Clinton appointee.") How much of a difference would it really make if judges were allowed to say the things we all know they believe anyway? Can we really justify the muzzle rule as a way to maintain an impression of neutrality when that impression doesn't actually exist?
Cutting judges loose in this area could lead to an increase in transparency. Again, there's no question that political, ideological, and personal views can affect judges' decisions, even if those judges conscientiously do their best to prevent this from happening. Are we better off pretending that this isn't the case--or recognizing it, being open about it, and giving everyone an opportunity to address it?
Think about this way. Imagine two attorneys are about to argue a critical motion that touches on a number of sensitive political issues, and imagine the two following scenarios. In Scenario one, the judge says nothing about his political beliefs, other than to assure the attorneys that his decision will be unaffected by whichever ones he holds. In Scenario 2, the judge walks into the courtroom wearing a Donald Trump (or Hillary Clinton, or Bernie Sanders) campaign button. He unabashedly tells the attorneys about his enthusiastic support for his candidate, and that he's been actively campaigning for that candidate (and that they should too).
At first glance, Scenario one might seem preferable. But is it really? Are we choosing between a judge with strong political positions and one without them--or between a set of beliefs and influences that are open and acknowledged, and a set that are kept below the surface?
As an attorney preparing to argue my case, I'd prefer that everything be in the open. Sure, in a case with political implications I'd like to have an apolitical judge, if that were an option. But it probably isn't. So I'd rather have one whose beliefs are worn on her sleeve, so I can factor those beliefs into my preparation.
That's what we do with jurors. When lawyers or judges go through the jury selection process for a trial, there is (at least when it's done well) a full, frank, open discussion of each juror's life experiences and beliefs. We do this because we want to know if there's anything that might affect that juror's ability to consider the case fairly and impartially. Good trial lawyers know that if prospective jurors have strongly held views that could color their impressions of a case, it's better to hear those views during the jury selection process than to have them surface for the first time behind closed doors in deliberations. Why shouldn't we treat judges' underlying beliefs the same way?
If we lived in some ideal world in which judges could be expected to be genuinely apolitical, I could see the advantages of having them stay silent regarding candidates, issues, and elections. But that's not our world, and I'd rather proceed in a way that acknowledges the way things really are. So fire away, Justice Ginsburg, and your colleagues too.