I have written this oped for the LA Times. A snippet:
But there is something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era. We’ve divided the Supreme Court into teams. We have our justices, champions who push our side’s agenda. The other side has their justices, villains intent on destroying America.
In the 1960s, some justices, such as William O. Douglas and Arthur Goldberg, made frequent appearances and were considered public figures. For the most part, they didn’t relitigate the court’s business in public.
When Scalia got to the Supreme Court, in 1986, he revived the role of justice as public intellectual. Over the three decades that he was on the bench, Scalia made many appearances, gave speeches and went on book tours. But, unlike Douglas and Goldberg, he pushed his particular brand of jurisprudence — and was known to insult and demean the theories of the other justices. In public, he was provocative and acerbic….
Now Ginsburg has taken up the mantle of the court’s most provocative public justice. She is not afraid to share provocative political opinions. She has dropped hints about upcoming decisions. She called Colin Kaepernick’s protest of racial injustice by kneeling during the national anthem “dumb and disrespectful,” remarks for which she later apologized.
Most controversially, she repeatedly expressed concern in 2016 that Trump might be elected president — statements that raised serious issues about whether she needed to recuse herself from cases involving his campaign, and for which she also apologized.
As her public persona has grown, Ginsburg has embraced the “Notorious R.B.G.” label. She’s encouraged a cult of worship to grow up around her. There’s hagiography like the “Notorious RBG” book and the “The RBG Workout,” an illustrated book by her personal trainer. There’s a Ginsburg tumblr and Ginsburg T-shirts.
Just this week, despite swearing off political statements, she said sexism played a prominent role in Hillary Clinton’s election defeat. That may be true, but a sitting Supreme Court justice should not be weighing in on such questions.
It’s dangerous for Supreme Court justices to assume such political roles, particularly when faith in our institutions is declining. If justices are going to be public figures, they should do so in ways that reinforce the rule of law, not partisan politics.