By Aaron Blake
I first wrote about Supreme Court Justice Ruth Bader Ginsburg’s controversial comments about Donald Trump earlier this week. Since then, the situation has erupted into an all-out feud, and now the editorial boards of both The New York Times and The Washington Post have weighed in against Ginsburg’s decision to insert herself into the 2016 campaign.
But plenty on the political left are still defending Ginsburg. And their preferred argument is that Ginsburg’s comments weren’t actually all that remarkable. Justices have gotten political plenty of times before, they say, and the name they most often cite is Ginsburg’s close friend and ideological opposite on the court, conservative Antonin Scalia.
But how similar were Scalia’s more controversial comments? And do other recent political tempests involving justices — most of whom make a practice of staying out of politics entirely — really compare to Ginsburg’s?
I’ll say at the top what I’ve said before: It’s hard if not impossible to find a direct analog to what Ginsburg has said in recent days. Supreme Court experts I’ve spoken to were unaware of any justices getting so directly and vocally involved — or involved at all, really — in a presidential campaign.
But there are instances in which justices have been judged by some to have gone too far with comments that could be more broadly described as political. In some of these cases, there were calls for them to recuse themselves from cases.
Below is a recap of some of the more notable examples, listed by justice, starting with Scalia. You can judge for yourself how similar they are.
June 2012: Criticizing Obama in Arizona immigration dissent
In dissenting from the court’s decision on a controversial Arizona immigration law, Scalia invoked President Obama. “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement – or, even worse, to the Executive’s unwise targeting of that funding?” He also criticized Obama’s then-recently announced executive order to exempt young illegal immigrants from deportation, saying the fact the Obama declined to enforce the law “boggles the mind.”
Some said the comments were overly political — specifically by referring to Obama in a case that was about a state law. The Post’s editorial board said “Justice Scalia strayed far from the case at hand to deliver animadversions on President Obama’s recent executive order.” Liberal Post columnist E.J. Dionne called for his resignation.
March 2006: Enemy combatants have no right to a jury trial
Newsweek reported that Scalia had told an audience in Switzerland that prisoners at the U.S. military prison in Guantanamo Bay, Cuba, had no legal right under the U.S. Constitution to a jury trial. “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” Scalia reportedly said. “Give me a break.”
The comments, notably, came as the court was weeks away from hearing an appeal from Salim Ahmed Hamdan, Osama bin Laden’s former driver. Hamdan said then-President George W. Bush’s ordering of a military trial for him violated his rights.
“I had a son on that battlefield and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial,” Scalia said, referring to his son, Matthew, who served in Iraq. “I mean, it’s crazy.”
A group of retired U.S. generals and admirals asked Scalia to recuse himself from the case. Scalia did not do so.
January 2004: Hunting trip with Dick Cheney — ‘Quack, quack’
This one wasn’t so much a Scalia comment, but rather concern about him being too close to the Bush administration. He went on a hunting trip with then-Vice President Dick Cheney “three weeks after the court agreed to hear a White House appeal in a case involving private meetings of the vice president’s energy task force,” according to the Associated Press.
After some cried foul, Scalia declined to back down, noting that the case wasn’t about Cheney as an individual. “This was a government issue,” Scalia said in February 2004. “It’s acceptable practice to socialize with executive branch officials when there are not personal claims against them. That’s all I’m going to say for now. Quack, quack.”
November 2015: Comparing gay rights to child molesters’ rights
Scalia has regularly inflamed the political left with his comments about gay rights and homosexuality more broadly. Perhaps his most controversial comment on this count came last year when he suggests the court’s logic on protecting gay rights — the court legalized gay marriage in June 2015 — could also be used to protect child molesters.
“What minorities deserve protection?” he asked, according to The New York Times. “What? It’s up to me to identify deserving minorities?”
January 2010: An animated reaction to Obama’s SOTU
Obama opted to criticized the Supreme Court to its face during his 2010 State of the Union address. With the justices seated nearby, Obama attacked their opinion deregulating campaign finance in the Citizens United case: “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” Alito’s response was caught on-camera, with the justice shaking his head and clearly mouthing the words “not true.”
Alito’s reaction was dissected frame-by-frame and deemed out of line by some. But in this case, he wasn’t the only one drawing criticism; some said Obama’s decision to question the court’s decision so publicly and directly was out of line as well.
John Paul Stevens
July 1987: Supporting Robert Bork’s nomination
The last Supreme Court nominee to be rejected by a vote of the Senate was Robert Bork. But as his nomination divided Washington, he got a vote of confidence from an unlikely source: then-Justice John Paul Stevens. The center-left justice said Republican President George H.W. Bush’s very conservative nominee should be confirmed by the Senate.
“I personally regard him as a very well-qualified candidate and one who will be a very welcome addition to the Court,” Stevens said in a speech in Colorado that took two weeks to work its way into the national press. “There are many, many reasons that lead me to that conclusion.”
Weighing in on other nominees to the Supreme Court, as the Times noted back then, is rare for a justice, because it’s seen as the Senate’s prerogative to confirm or deny them.
What some might have missed this weekend is that, while slamming Trump in her New York Times interview, Ginsburg also ventured into Stevens-esque territory, criticizing the Senate for not voting on Obama’s nomination of Merrick Garland to replace Scalia on the court:
“I think he is about as well qualified as any nominee to this court,” she said. “Super bright and very nice, very easy to deal with. And super prepared. He would be a great colleague.”
Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate.
“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”
Ruth Bader Ginsburg
. . . which brings us to Ginsburg herself. If there was one justice that would break new ground in criticizing a presidential candidate, there was little surprise it would be her. Ginsburg has become increasingly outspoken on political issues in recent years. It has earned her a following on the political left and even cult-hero status.
The most prominent examples of Ginsburg ruffling feathers with her public comments have come on the issue of abortion. Below are some prominent examples:
– “It makes no sense as a national policy to promote birth only among poor people.” — to Elle magazine in September 2014
– “Frankly I had thought that at the time Roe [v. Wade] was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” — to the New York Times in July 2009. (Conservative Post columnist Michael Gerson said it appeared as though Ginsburg “is describing the attitude of some of her own social class — that abortion is economically important to a ‘woman of means’ and useful in reducing the number of social undesirables.”
– “How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either. . . . I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction.” — to the New Republic in September 2014. (Conservatives argued that Ginsburg was pre-judging the Texas abortion law, which the court struck down two weeks ago.)
Ginsburg also said in February 2015 — before the court legalized gay marriage nationwide and before oral arguments in the Obergefell v. Hodges case that led to that outcome — that the country was ready for it.
“The change in people’s attitudes on that issue has been enormous,” she told Bloomberg. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”
(c) 2016, The Washington Post · Aaron Blake