We have been waiting, rather impatiently, for some credible explanation for why the recent interview with The New York Times Justice Ruth Bader Ginsberg did not take place. Or we would have settled for a denial. Or in the final absence of a satisfactory explanation, simply an explanation that it was a conversation with an old intimate of the Justice that was never intended for publication.
Where to begin to indict Justice Ginsberg for her lack of judgment, protocol or respect for that most holy of American institutions, the Supreme Court of the United States?
It is an old and honorable tradition, one of that has all the support of logic and a respect for law, justices and our institutions, that serving members of the highest court in the land do not discuss their deliberations, their views or the basis of their votes on issues. Bader Ginsburg has always been a show horse, far too ready to lecture in the public forum when she might have been attending to her torts.
But there is only one place for the justices’ views on the law: that is in the briefs which the Justices are permitted to write, either jointly in agreement with other justices, in dissent against other justices, or indeed, as impendent presentation of their legal views on particular cases which often as not may involve consideration of past verdicts of their colleagues on the Court.
The selection of justices for the high court is as serious a proceeding and duty as the president has as in the highest executive, elected by all the people, in the country. That selection and the approval – or disapproval – by the senate of his choice is a thorny political process. The fact that the Republican majority has held up approval of Chief Judge Merrick Garland., Obama’s nominee to replace Justice Antonin Gregory Scalia who died suddenly earlier this year is not unprecedented. The reason for the Republicans’ reluctance is no secret; Scalia represented the keystone of the conservative majority in most decisions. Liberal Democrats in the same Senate majority position had done the same in the past. But given Garland’s generally highly respected qualifications for the bench, the Republicans might have been on firmer ground had they at least held hearings on his nomination and examined his past expressed views as well as his credentials.
In part, the Founders were less specific about the duties of the judiciary, the third and equal branch of government which they identified. This may have been in part because of their wariness about the threat that lifetime appointments – the only ones in government – might threaten a judicial ascendancy against the legislative and executive functions. In fact, the Founders less clearly defined the duties of the highest court and it could be argued that “judicial supremacy”, the right of the highest court to rule against the constitutionality of a law, arose as much by the action of strong chief justices in the early 19th century than by constitutional fiat.
The process reached a constitutional crisis in the mid-1930s after the wildly popular president, Franklin Delano Roosevelt, had won an avalanche in his second term election in 1936. FDR had his most loyal Congress supporters introduce the Judicial Procedures Reform Bill of 1937. — dubbed by its opponents as the “court-packing plan”.
Roosevelt was attempting to circumvent a strictly constitutional majority of the Supreme Court which had repeatedly struck down some of his more drastic efforts to boost a Great Depression economy. Indeed, some of these proposals – with 20-20 hindsight – were anathema to the U.S. political system, arising as they often did from FDR’s kaleidoscope of advisers, ranging on the right and left from admirers of then new Europe fascism to the Soviet Union Communism.
Then, as now, the court was dominated by older personalities, most clinging to their seats on the Court. Roosevelt’s plan would have permitted him to appoint an additional justice to the Court,, up to a maximum of six, for every member of the court over the age of 70 years and 6 months. FDR and his advisers argued that since the Constitution had not stipulated the number of judges but had been decided by law, it was within the Congress [at his instance] to change the numbers.
But public opposition to Roosevelt’s proposal – including by his own curmudgeonly vice president, John Nance Garner, defeated the legislation. But through the ordinary attrition of age, a more friendly court came into view. It was pyhric victory for Roosevelt, loosing him support even among other members of his own party. But what it may have done was the enshrine the sanctity of the Court including its prerogative acquired in the 19th century to strike down legislation as “unconstitutional”, against the fundamental gurantees of the founding document. In reality it established judicial supremacy among the three separate elements of government which the Founders had conceived, setting up the uniqueness of the American Republic. [Britain, from whom so much of American politics descends, has continued to preserve “parliamentary supremacy”, the ultimate authority of its elected representatives, a divergence that has marked continued debate among Britain’s former colonies, such as India.]
It is against this background that Bader Ginsburg’s remarks must be judged. She has not only violated her own obligations to the Court, but she has perhaps set a bad precedent for other justices to follow. Bringing the Court into the political process for election of the new president is intolerable. Not only are we owed an apology by the 83-year-old Justice Bader Ginsburg, but her early retirement would be a welcomed solution to the disaster she has created.