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Aoraki / Mount Cook is the highest point of New Zealand, at 12317 feet. By giiku (https://www.flickr.com/photos/giiku/16340529756/) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Intellect and Virtue

Sunday, July 17, 2016Culture

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If her husband were alive, she continued, he might have said, "It's time for us to move to New Zealand."

Supreme Court Justice Ruth Bader Ginsburg caused quite a stir this month by saying what was on her mind about Donald Trump to the New York Times. "I can't imagine what the country would be -- with Donald Trump as our president," she said.

If her husband were alive, she continued, he might have said, "It's time for us to move to New Zealand." In a later interview with CNN she called Trump "a faker" who "says whatever comes into his head at the moment."

It's no surprise that Justice Ginsburg should entertain these views. She was appointed to the Supreme Court by Bill Clinton. Before becoming a judge, she co-founded the Women's Rights Project at the American Civil Liberties Union. She's the star of a Tumblr blog called Notorious R.B.G. that celebrates her as a hero of the left.

But Canon 5 of the Code of Conduct for United States Judges says that "a judge should refrain from political activity." In particular, she should not "publicly endorse or oppose a candidate for public office."

And although the code applies to all federal judges except those on the Supreme Court, the justices traditionally stay out of politics. John Marshall Harlan II, appointed by President Dwight D. Eisenhower in 1955, didn't even vote after he took his seat on the court.

There is general agreement that Justice Ginsburg should have kept her thoughts to herself (and she has admitted as much). Judges are supposed to be fair and impartial, and comments like hers create the appearance (to say no more) that she favors one party over the other.

Imagine if a case like Bush v. Gore arose out of the November election. Mr. Trump might be forgiven for supposing that she had a bias against him.

I think, though, that the justice's comments reflect a deeper misconception about the role of a judge, and it is one she shares with a lot of people.

In 1973 the Supreme Court held that the due process clause guaranteed women the right to have an abortion -- a right with no foundation in the language or the history of the Constitution. It seemed, Justice William Rehnquist said in dissent, more like "judicial legislation" than constitutional interpretation.

Last year the court held that the due process clause guaranteed same-sex couples the right to marry -- another right the Constitution says nothing about. Chief Justice John Roberts characterized the court's decision as "an act of will, not of legal judgment."

If the members of the Supreme Court are nothing more than politicians in robes, the rule forbidding them to engage in political activity seems pointless, even disingenuous. Canon 5 rests on a different view of the judge's role. It assumes that the Constitution and laws have meaning, that they are binding on decision-makers. Judges are constrained by text and precedent. They can't discard or improve on outdated language.

This is what allows us to feel comfortable entrusting weighty matters of constitutional interpretation to people who in their prior lives may have worked for the ACLU or the Heritage Foundation.

Since the decision in Roe v. Wade, though, a majority of the court has claimed the authority to make things up. This has had the natural effect of leading us to see its work as politics by another name.

It's not just Democrats who take this approach. Republicans in the Senate have held up the nomination of Merrick Garland because, they say, this is an issue the people should have an opportunity to weigh in on. Donald Trump has floated a list of candidates he would consider in lieu of Garland. We're voting for the Supreme Court.

This is a bad turn of events, and to my mind, the court has itself to blame. Its assertion of authority to make law has taken power from the elected branches and undermined the very reasons we have for trusting the court itself.

- Garvey is president of The Catholic University of America in Washington, D.C.