Late last week, Supreme Court Justice Ruth Bader Ginsburg tried to put the controversy over her recent criticisms of presumptive Republican presidential nominee Donald Trump behind her, issuing a written statement of regret and telling NPR’s Nina Totenberg: “I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.”
But the issue of judicial speech on political matters is hardly over and done with. It will remain fodder for the 2016 presidential election because Donald Trump criticized Ginsburg, even questioning her mental competence (“her mind is shot”) and calling on her to resign. Many court watchers worry what might happen if the court is called upon to rule on any kind of election dispute and that brings a reprise of calls for her to recuse in any Trump-related litigation. And on top of all that, the court itself will soon decide whether to weigh in on a case challenging an Arizona rule that bars judicial candidates from doing the very thing Justice Ginsburg did: openly supporting or opposing a candidate for public office.
If Justice Ginsburg follows her past judicial writing and not her personal example, she’d likely decide—correctly, we think—that states can stop judicial candidates and judges from endorsing or opposing candidates for office (aside from opponents in their own elections). Even though we all know that judges have political opinions, it is better for their own legitimacy and the integrity of our elections to keep the judicial and political roles separate. If the court votes to allow yet more political speech from sitting judges, we will have a great many more Ginsburggates to look forward to.
Campaign regulation opponent Jim Bopp (the man who brought you Citizens United) has filed a cert petition with the high court in Wolfson v. Concannon, arguing among other things that Arizona’s rule forbidding candidates to endorse or oppose candidates other than in their own races violates the First Amendment. Bopp lost that case unanimously before an en banc panel of 9th U.S. Circuit Court of Appeals judges (some liberal and some conservatives), and he should lose at the Supreme Court, too. But Ginsburg’s anti-Trump tirades may ironically give Bopp a better chance of succeeding at the high court by highlighting the issue of the First Amendment rights of judges and judicial candidates.
The court has already weighed in a few times on the question of limiting the political activities of judicial candidates, and Ginsburg herself has been at the forefront of arguing that such limits don’t violate the First Amendment. In the 2002 case, Republican Party of Minnesota v. White, Justice Ginsburg dissented from a Justice Scalia opinion striking down a law preventing judicial candidates from announcing their views on disputed legal and political issues on First Amendment grounds. To Ginsburg, judicial elections are different from regular elections, and the state has a stronger interest in limiting the speech of judges and judicial candidates. As she wrote in White: “Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote.”
Justice Ginsburg agreed with a majority of the court in the 2009 case of Caperton v. Massey that it violated due process for a West Virginia Supreme Court justice to hear a case involving a party that had contributed more than $3 million to a super PAC to help get that justice elected. And in last year’s judicial speech case, Williams-Yulee v. Florida Bar, Justice Ginsburg agreed with the majority that Florida could stop judicial candidates from personally soliciting campaign contributions for their electoral races. Justice Ginsburg again wrote separately to emphasize that states should have more leeway to control the speech of judges and judicial candidates than of other candidates, to promote the values of judicial integrity.
So what is the interest at stake in keeping judges and judicial candidates from endorsing or opposing others for office? Why not simply say that judges should have a First Amendment right to say whatever they want, as our friend Erwin Chemerinsky, the dean of the University of California, Irvine’s law school, has recently suggested about Justice Ginsburg? After all, we know these judges have political opinions, and many of us would just as soon know those opinions than not.
The First Amendment, like all constitutional rights, is not absolute, and there are important systemic reasons to keep judges from spouting off on political matters. To begin with, judges are sometimes called to decide election disputes, and having a judge take sides in an election will inevitably render suspect any decision that judge makes for a candidate he has endorsed.
But there is a more fundamental problem with judges injecting themselves in political campaigns. Imagine Ginsburg sitting down with MSNBC’s Rachel Maddow to talk politics, or Justice Samuel Alito weighing in on Trump’s vice presidential choice on Fox News’ Hannity show. Nobody doubts that the justices have strong viewpoints about specific candidates, but the judicial branch is already politicized enough. Consider that we frequently identify judges with the president who appointed them or the political party with which they affiliated. But most judges will tell you, correctly we believe, that these political affiliations count far less than their oath to administer the laws fairly and objectively. To borrow from Mark Twain for a moment, “It is better to keep your mouth closed and let people think you are impartial than to open it and remove all doubt.”
The judicial speech rules do not exist to punish judges, who have myriad other opportunities to express their political preferences. They exist to preserve the impression that judges can rise above politics for a larger interest: the interest in a neutral, independent judicial branch. The rules exist not because anyone believes judges are apolitical but as a reminder to judges that they must aspire to hold themselves out as apolitical. Judges who have an extra obligation to appear neutral might be more likely to act in a neutral way. The appearance of independence is not a trivial value in our judicial branch. It is arguably the very backbone of judicial legitimacy.
Think about the bipartisan outcry when Donald Trump suggested this spring that all judges of Mexican heritage would be biased against him because of his widely shared dream of building a wall between the United States and Mexico. The reaction was as pointed and angry as that directed at Ginsburg last week. And it was not because Americans need to cling to their illusions about the judicial branch—it’s because we want our judges to cling to those illusions as well and to do their level best to live them and embody them. The court should ensure, as it did last year in Williams-Yulee, that state efforts to undermine appearances of judicial impropriety are unsuccessful. And Justice Ginsburg, who learned the hard way last week what happens when justices run afoul of those obligations, should continue to lead that charge.