Ruth Bader Ginsburg's apology for criticizing Donald Trump repairs some of the damage the U.S. Supreme Court justice inflicted on the separation of powers between executive and judiciary. But her actions remain deeply alarming. A polarized America is struggling to defend some remnant of civilized democratic space, and Justice Ginsburg's words weakened that defence.
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Canadians know something about this.
In the twilight of his prime ministership, Stephen Harper attacked Chief Justice Beverley McLachlin for, he claimed, trying to interfere in his decision to nominate Marc Nadon to the Supreme Court of Canada. The Canadian bar, law school deans and international legal authorities unanimously condemned Mr. Harper for one of his worst misjudgments.
Fortunately, the damage was limited. The Court declared Justice Nadon's appointment unconstitutional (for reasons that need not concern us now); the prime minister nominated another judge; the caravan moved on. If anything, the furious reaction to the Conservative prime minister's actions helped strengthen the separation of powers in Canada.
Justice Ginsburg's actions were unfathomably worse than any sin Mr. Harper committed. In a series of interviews over several days, she called Mr. Trump a "faker." She attacked his refusal to release his income tax returns. "I can't imagine what this place would be – I can't imagine what the country would be – with Donald Trump as our president," she told the New York Times. She told the Associated Press that if Mr. Trump became president, "everything is up for grabs."
Her defenders – and they are many, for Justice Ginsburg has served the court and her country with distinction throughout her long career – point out that the American Supreme Court has always been more political than its Canadian equivalent.
Charles Evans Hughes retired from the Supreme Court in 1916 so that he could run as the Republican presidential candidate. (He lost to Woodrow Wilson.)
In his 2010 State of the Union address, President Barack Obama criticized the Supreme Court's Citizens United decision, which struck down corporate limits on political donations, while Justice Samuel Alito, sitting mere metres away, shook his head and mouthed the words "not true." The late Antonin Scalia criticized the Obama administration in some of his judicial opinions and speeches.
But in terms of pure partisanship, nothing comes even remotely close to Justice Ginsburg's blunt interventions, which arrived mere days before the Republican and Democratic national conventions.
Progressives searching for some way to defend her actions need only ask themselves: How would they have have reacted had Justice Clarence Thomas openly attacked Hillary Clinton in such a fashion?
Justice Ginsburg apparently reached the same conclusion. On Thursday morning, she issued this statement: "On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."
This undoes some of the damage Justice Ginsburg inflicted on the integrity of the court, but by no means all of it. What if, for example, the court were asked to rule on some aspect of this November's election, as the Supreme Court was asked to do in 2000 over the recount in Florida? Would Justice Ginsburg recuse herself from the vote? Or would she conclude she was in no conflict? If she did decide to hear the case, how would fair-minded citizens react?
Mr. Trump, of course, responded with characteristic tact: "Her mind is shot – resign!" he bellowed on Twitter. One of the most unpleasant aspects of this affair is having to admit that Mr. Trump, for once, is right in saying he's been wronged.
Some people argue that a Trump presidency would pose such a clear and present danger to American democracy that no one can afford to stay neutral. Besides, goes this argument, Mr. Trump started it, by attacking the judge who is trying a case involving Trump University.
No. If Mr. Trump does win, and if he does pose as great a threat to the Constitution as his critics fear, then the court may be all that stands between the president and autocracy.
The integrity of that court will be vital in such a contest. Judge Ginsburg undermined that integrity. It was that bad.