Nothing in the Constitution’s guarantees of free speech make political commentary out of bounds for judges, or for Supreme Court Justices. If their First Amendment rights are actually restricted at all, it is only when they say something that shows they would be (or would be seen to be) biased about how they would decide a present or future lawsuit...
...Justice Ruth Bader Ginsburg, who has long had a habit of speaking her mind quite freely outside of her judicial duties, has been drawing some heavy criticism for her reaction to the presidential candidacy of Republican Donald Trump. Indeed, as she was quoted from one news interview to the next over the past few days, her criticism escalated from fretting about the impact his election would have on the future of the country and of the Supreme Court, to the ultimate suggestion that he was “a faker” and that he should not be allowed to get by with refusing to publicly release his tax returns...
The criticism, of course, was that these comments amounted to an ethical breach. In a year when the presidential campaign had already taken on some truly bizarre characteristics, especially of rampant name-calling, the critics found it jarring that a member of the Supreme Court would add to the cacophony...
It should be said quickly in response that the reality is that the code of judicial ethics has never been understood by most members of the Supreme Court as actually binding on them. Over the years, most Justices have voluntarily sought to observe the ethical norms, but they have drawn the line at having those enforced against them. They have done so as a matter of principle: the Founders intended the Supreme Court to be truly independent. The Constitution provides the only form of punishment if they stray too far from what the political branches of the government want or believe to be proper: the congressional power of impeachment...
But the risk that a Justice takes in stepping into popular political discourse is nurturing the idea that they, too, are immersed in politics, that they make judicial decisions according to their own political preferences. That is a corrosive perception about the court and its members, and it can make it harder for the public to accept when the Justices do reach decisions that are deeply controversial....
Unfortunately, the Supreme Court still has to deal with the lingering suspicion that it directly engaged in political maneuvering when, in 2000, it actually decided the outcome of the presidential election by clearing the way to the White House for George W. Bush over Al Gore. Whatever legal reasons the Court gave for that outcome, it is remembered by many as a pure political choice. Justice Ginsburg was a dissenter from that decision...
(Continued)
http://blog.constitutioncenter.org/...justices-have-a-right-to-comment-on-politics/
...Justice Ruth Bader Ginsburg, who has long had a habit of speaking her mind quite freely outside of her judicial duties, has been drawing some heavy criticism for her reaction to the presidential candidacy of Republican Donald Trump. Indeed, as she was quoted from one news interview to the next over the past few days, her criticism escalated from fretting about the impact his election would have on the future of the country and of the Supreme Court, to the ultimate suggestion that he was “a faker” and that he should not be allowed to get by with refusing to publicly release his tax returns...
The criticism, of course, was that these comments amounted to an ethical breach. In a year when the presidential campaign had already taken on some truly bizarre characteristics, especially of rampant name-calling, the critics found it jarring that a member of the Supreme Court would add to the cacophony...
It should be said quickly in response that the reality is that the code of judicial ethics has never been understood by most members of the Supreme Court as actually binding on them. Over the years, most Justices have voluntarily sought to observe the ethical norms, but they have drawn the line at having those enforced against them. They have done so as a matter of principle: the Founders intended the Supreme Court to be truly independent. The Constitution provides the only form of punishment if they stray too far from what the political branches of the government want or believe to be proper: the congressional power of impeachment...
But the risk that a Justice takes in stepping into popular political discourse is nurturing the idea that they, too, are immersed in politics, that they make judicial decisions according to their own political preferences. That is a corrosive perception about the court and its members, and it can make it harder for the public to accept when the Justices do reach decisions that are deeply controversial....
Unfortunately, the Supreme Court still has to deal with the lingering suspicion that it directly engaged in political maneuvering when, in 2000, it actually decided the outcome of the presidential election by clearing the way to the White House for George W. Bush over Al Gore. Whatever legal reasons the Court gave for that outcome, it is remembered by many as a pure political choice. Justice Ginsburg was a dissenter from that decision...
(Continued)
http://blog.constitutioncenter.org/...justices-have-a-right-to-comment-on-politics/
