Judges must be politically impartial, period

Last month, U.S. Supreme Court Justice Ruth Bader Ginsburg made several disparaging remarks about Republican nominee Donald Trump and his presidential candidacy. The justice has since apologized for making the remarks. She was correct to do so.

{mosads}While history has certainly seen its share of judges engaging in political activities, Ginsburg’s actions set a new — and unfortunate — record for judicial involvement in politics in modern times. She affirmatively entered the political arena, she did so publicly and she tried to influence the election of the most important office in the nation. And she did all this while serving on the nation’s highest court.

At the outset, it is important to understand that courts in the United States are designed and expected to be at least somewhat free of the politics that attend (plague?) the other branches of government. People thus often refer to the “political branches” in distinguishing the judiciary. Indeed, the Supreme Court has developed, and fairly often invoked, the “political question doctrine,” under which courts decline to answer questions that are best seen as committed to the political branches.

To be sure, a few commentators have recently argued that the lifetime tenure that federal judges enjoy is designed to secure those judges only independence from politicians in the legislative and executive branches. However, this position ignores the realities of how judges conduct themselves, and (more importantly) are expected to conduct themselves. The Code of Judicial Conduct — an ethical code that governs the conduct of most judges (although not the Justices of the Supreme Court) — restricts judges from taking a role in the election process. This restriction applies even to judges who are themselves elected to office.

Moreover, while the Supreme Court has from time to time considered — and even upheld — challenges to the code on the ground that some of its provisions infringe upon judges’ (and judicial candidates’) First Amendment rights, the justices, and in particular Ginsburg, also have recognized the strong, and legitimate, government interest in maintaining a judiciary that is impartial and, moreover, displays an appearance of impartiality.

The court — again, with Ginsburg’s approval — has interpreted the Constitution’s Due Process Clause to require judges to act impartially and with the appearance of impartiality. Statements such as those delivered by Ginsburg raise serious questions about her impartiality, and by attribution the impartiality of the Supreme Court and even the federal judiciary as a whole.

It is true that other justices have from time to time — and often with at least some public opprobrium — played some role in the political process. But Ginsburg’s statements go far beyond anything we have seen in recent times.

First, Ginsburg entered the political fray voluntarily. Many will recall Justice Samuel Alito shaking his head in disagreement with President Obama’s description of a case holding at a State of the Union address a few years back. But Alito’s reaction was quite clearly a visceral one in response to an unexpected statement by the president. Indeed, Alito was unwilling further to respond to the president’s State of the Union statements. So, too, did the justices in the late 1930s not respond to the public pressure President Franklin Roosevelt brought to bear on the court. This unwillingness to speak out is consistent with a view of the court, and its members, as apolitical.

Second, Ginsburg engaged in quite a public display of political engagement. History has revealed the extent to which Roosevelt received advice from some of his Supreme Court appointees. And Justice Abe Fortas advised President Lyndon Johnson on political matters even while he served on the court. But these engagements were not public at the time. And the discovery of Fortas’s actions cost him the opportunity to serve as the nation’s chief justice.

Third, Ginsburg directly tried to influence an election (and not just any election, but the election of the president). As noted above, the Code of Judicial Conduct endeavors to limit judges’ engagement in the political election process in particular. So important is avoiding interference in political elections to impartiality that Congress has seen fit in the Internal Revenue Code to condition tax-exempt status for charitable organizations on those organizations not taking actions that might influence the outcome of elections.

There are examples, moreover, of politicians appointing judges to courts in order to remove them from the arena of electoral politics. Consider, for example, then-New York Gov. Mario Cuomo’s decision to elevate Sol Wachtler — a Republican then serving as a judge on New York’s highest court, the Court of Appeals — as chief judge of the Court of Appeals. Wachtler had been discussed as possibly mounting a challenge to Cuomo for the governorship. Once chief judge, Wachtler neither challenged Cuomo nor campaigned (or made any statements) against him.

It thus was entirely appropriate, and a most welcome development, for Justice Ginsburg to recognize the error of her ways and apologize. But she should have known better, and should have come to her realization and rendered her apology earlier. Perhaps Ginsburg felt that her retirement was soon approaching, and so any long-term effect on her ability to hear cases would be limited. But that calculus ignores the deleterious effect her remarks have had on her legacy, and more importantly on reputation and legitimacy of the institution she serves.

Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.

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