What Charlie Said

This is one of those days on which I'm glad I was raised Catholic and, therefore, was schooled in the difference between venial and mortal sin. Because anyone who thinks that RBG's honest assessment of the vulgar talking yam is on a par with A.) Antonin Scalia's hunting trips with Dick Cheney, or B.) the majority in Bush v. Gore including one justice (Scalia) whose son got a job with the administration that poppa helped install and another (Thomas) whose wife did, too, needs to seriously examine their consciences more than they did. 

I will be told that I am a Bad Analyst because I am essentially arguing that multiple wrongs make a right, but I don't really care. Leave aside the historic reality that the Court always has been politicized, sometimes garishly so, but we are now at the end of a 30-year process in which a well-financed conservative infrastructure restructured the federal court system from top to bottom, seeding it with reliable judges who supported dubious interpretations of laws to which their ideological sponsors were unfriendly. 

Ginsberg is not intolerant of conservatives; she and Scalia were opera buddies. But she's 83, sharp as a tack, and a survivor of pancreatic cancer, which generally gives you the same odds as stepping in front of a westbound freight. Her big bag of fcks was empty long ago. She's seen what's happened to the courts first-hand, and she is right to warn us that a Trump administration is just as likely to put the gardener at Mar-A-Lago on the bench as not. Liberals, of course, are supposed to make sure they use the right fork when they sit down to dinner with barbarians.

Given all of these compelling reasons that Ginsburg should have refrained from speaking her mind about Trump, why did she take the risk? It seems clear that Ginsburg has made a very conscious decision to cash in her political capital after years of holding her fire. The justice is 83, and while she remains healthy and sharp, she probably won’t sit on the court for much longer. She won’t be impeached—Supreme Court justices must do much worse to suffer that sorry fate—and she can’t be voted out. In effect, Ginsburg has nothing to lose but her good name. And that, it seems, is what she has decided she is willing to risk if it might potentially rally her admirers against Trump’s looming peril.

After all, Donald Trump is not an ordinary presidential candidate, or an ordinary Republican. He is a racist, misogynistic, xenophobic bigot. He has proposed banning Muslims from entering the United States; called Mexican immigrantsrapists and criminals; supported the deportation of 11 million undocumented immigrants; routinely treated women with sexist disdain; advocated for torture of suspected terrorists; and generally dismissed the rule of law. He is, as my colleague Jamelle Bouie lucidly explained, a fascist, in a completely different category from previous Republican presidential nominees.

Romney and McCain had qualities and policies that Ginsburg surely loathed as well. But they always had America’s best interests at heart. That is altogether untrue of thesinister and self-interested Trump. For Ginsburg to treat Trump with the same respect—that is, complete silence—that she afforded previous Republican nominees would acquiesce to the premise that his candidacy is just like theirs. It would suggest that this is an election like any other, a run-of-the-mill election rather than a battle for America’s soul. It would legitimize a fascist.

And so, sensing the menace that Trump undoubtedly poses to her country, Ginsburg abandoned judicial propriety to wrestle in the mud with a candidate she detests. It is not pretty, it is not pleasant, and it may not even be that smart. But it may be the one thing the justice can do to help prevent a President Trump. And to her mind, that alone may make it worthwhile.

Context matters here, too. Is a Supreme Court justice obligated to remain in the realm of subtext no matter how great she imagines the danger facing the country to be? What if a presidential candidate is campaigning on a promise to ignore congressional and judicial limits on his power, and she is planning to retire no matter who wins the election? Or what if there is a significant bipartisan and cross-ideological consensus that the candidate is a dangerous threat to our democracy?

Well, here we are: a situation none of the justices has encountered before and hopefully won’t encounter again. If Marco Rubio had become the GOP’s nominee and Ginsburg said the same things, the new precedent would be obvious and unfortunate, and there might be no going back.

But extraordinary circumstances can limit the reach of new precedents, and Ginsburg has the wisdom and breadth of experience to make us question our reflexive sense that we understand governing norms better than she does.