Commentary

Time for Justice Ginsburg to Retire

By Lynn Wardle | March 2, 2017 | 10:27am EST
Supreme Court Justice Ruth Bader Ginsburg (AP Photo/Cliff Owen)

Justice Ruth Bader Ginsburg has been a member of the Supreme Court of the United States for nearly a quarter-century.  She was appointed to the top Court by President Clinton in 1993.   

Previously she had served as a judge on the U.S. Court of Appeals for the District of Columbia for over a dozen years.  So she has more than 36 years of experience as a federal judge.

Her intellectual gifts were evident at Cornell University where she excelled. Then at Harvard Law School she became the first woman to become a member of the Harvard Law Review.

Throughout her years on the bench, she has been respected because of her analytical integrity and self-discipline.  She has mastered some difficult areas of law, and as a professor she was a leading authority on conflict of laws, civil procedure, and sex discrimination law. 

Justice Ginsburg is one of the (if not THE) most liberal justices to serve on the Court ever.  Ironically, one of her closest friends on the Court was the late Justice Antonin Scalia, one of the (if not THE) most conservative justices to sit on the top Court.

Justice Ginsburg has been a model in many ways of an honorable, capable justice.  She generally has acted responsibly and risen above political and ideological differences.

So it was very disappointing to learn that she would boycott the first speech by President Trump to both houses of Congress on February 28.  (Justices Thomas and Alito also skipped President Trump’s speech, but they were following their own regular practices of skipping those presidential speeches.) Both Alito and Thomas have missed speeches by both Democratic and Republican presidents, so their absence carries no particular political message. 

On the other hand, Justice Ginsburg’s decision to boycott President Trump’s first speech to Congress carried a clear political message of rejection of the new President.  She attended every speech by President Obama to Congress (eight years in a row).

Ruth Bader Ginsburg has been an outspoken critic of Donald Trump for a long time.  Less than four months before the 2016 election, she criticized Trump in three separate interviews with the media.  When she was censured for doing that, she said that she regretted her comments, but she declined to apologize to Mr. Trump.

Her outspoken condemnation of Trump has become major news.  For example, less than a week before the President’s address to Congress, The Washington Post carried a story entitledRath Bader Ginsburg on Trump’s presidency: ‘We are not experiencing the best of times’.”   

Seven months earlier, The Washington Post had written about the “unusual and apparently unprecedented battle of words” between Justice Ginsburg and then-candidate Trump.  It noted that she had called him a “faker” and had called on the media to investigate him.  Candidate Trump responded: “Her mind is shot – resign!” 

The Washington Post reported that Justice Ginsburg’s verbal attacks on Trump have been “met with a wave of alarm by many judicial ethics experts.”  Her anti-Trump remarks raise serious ethical concerns that could damage the reputation of and public trust in the federal courts, in general, and the Supreme Court, in particular.

Justice Ginsburg’s loudly announced boycott of President Trump’s February 28th message to Congress generated headlines throughout the country.  While she and some of her supporters may celebrate the attention that gave to opposition to the new President, there is concern that her tactics may be diminishing the credibility of the Supreme Court as a neutral, non-partisan judicial body.  If she shows such contempt for the President of the United States, can Americans have confidence that she will fairly judge cases involving the administration, or other persons whose viewpoints or personalities she may dislike?  

It certainly is not uncommon for older persons to be a little too outspoken. It is not uncommon for some seniors to unpleasantly criticize persons with whom they disagree. But most older persons are not justices of the Supreme Court of the United States.  That position carries with it substantial responsibilities, including the responsibility to avoid saying and doing things that might impair the reputation and integrity of the Court.

Justices must refrain from expressing or manifesting contempt, distain and animus for persons who may be bringing cases before the Court. And there is no doubt that the President of the United States will be involved in many cases at the Supreme Court.

It is time for Justice Ginsburg to retire.  She is 84 years old.  In the past, she has earned respect from those who disagree with her as well as from her supporters. However, her recent words and actions demonstrate that she has lost a measure of self-control that is essential for one who sits on the Supreme Court. 

It is not just that she is no longer in her prime.  Rather, her recent inappropriate comments manifest a disregard for the public expectations that are indelibly attached to the high position she holds as a justice of the Supreme Court of the United States.

It is time for Justice Ginsburg to retire before her reputation and the reputation of the Court are irreparably damaged by her irresponsible comments. Her inappropriate criticism cannot continue without causing serious damage to the institutions and reputation that she has worked to protect.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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