Ruth Bader Ginsburg Attacks Donald Trump, Raising Judicial Ethics Questions

Justice Ginsburg made some recent comments about the election that have, to say the least, raised some eyebrows.

Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg has long had a reputation for speaking her mind on issues of controversy but her most recent comments about the Presidential election in general and Donald Trump in particular are drawing both attention and criticism from both political and legal circles:

WASHINGTON — Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“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 said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,'” Justice Ginsburg said, smiling ruefully.

Ginsburg seemed to go even further in an interview with CNN’s Joan Biskupic yesterday:

Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

(…)

It is highly unusual for a justice to make such politically charged remarks, and some critics said she crossed the line. Senate Majority Leader Mitch McConnell on Tuesday sharply criticized Ginsburg’s criticism of Trump, calling her comments “totally inappropriate.”

Having met with Ginsburg on a regular basis for more than a decade and sometimes been struck by her frankness, I found her response classic. The 83-year-old justice expressed no regret on Monday for the comments or surprise that she would be criticized. Any disbelief she expressed stemmed from the fact that Trump has gotten so far in the election cycle.

“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president … ” Her voice trailed off gloomily.

“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”

Ginsburg was appointed to the high court by President Bill Clinton in 1993, and is now the senior member of the liberal wing and leading voice countering conservative Chief Justice Roberts. She has drawn a cult-like following among young people who have nicknamed her The Notorious R.B.G., a play on American rapper The Notorious B.I.G.

(…)

It was evident in our interview on Monday that when Ginsburg imagines who would succeed President Obama, she does not expect Trump to prevail over Clinton.

Acknowledging her own age and that Justices Anthony Kennedy and Stephen Breyer will turn 80 and 78, respectively, Ginsburg said of the possible next president: “She is bound to have a few appointments (to the Supreme Court) in her term.”

Trump himself has already hit back against Justice Ginsburg, as has his campaign, and the response to these comments by people on the two sides of the political aisle is about what you’d expect it to be, and thus not very interesting. What’s more interesting is the discussion that Ginsburg’s highly unusual candor about electoral politics, something I personally cannot recall hearing from any Supreme Court Justice, or from any other Federal Judge at any legal, has set off in the legal community and the questions it has raised over whether or not she has crossed a line she should not have crossed. At the very least, it seems apparent that if the Clinton versus Trump race were to become mired in some kind of legal dispute that made its way to the Supreme Court, which could be a case similar to Bush v. Gore or any number of other things, and that the outcome of the election dependd on the outcome of this case, there would be tremendous pressure on Ginsburg to recuse herself given her already stated views about a Trump Presidency. In that regard, The Volokh Conspiracy’s Jonathan Adler suggests that Ginsburg did the nation a favor by ensuring that there would not be a  4-4 tie in such a case. Beyond that type of case, though, it’s unclear that Ginsburg’s remarks would require her take that action in any other type of case. If Trump were to win in November, there would inevitably be some litigation regarding Federal agencies or Cabinet Departments that will cross the Justice’s desk at some point after 2017. It is by no means clear that Gingburg would be required to recuse herself in such cases, but the issue could end up being raised in any case by a party who thought they could use to their advantage.

Beyond those occasions, there are potential arguments in favor of the idea that Ginsburg may have violated two of the Code of Conduct for United States Judges, which are merely advisory when it comes to Supreme Court Justices given their unique position in the Federal Judicial hierarchy. Canon Five says that a Judge should refrain from political activity, and the specific cannon that would appear to apply here is Canon 5(A)(2) which states that a Judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office. This would appear to apply directly to what Ginsburg said in her two recent interviews, and it does appear that Ginsburg’s remarks cross the line. Additionally, Canon Two states that Judges should avoid the appearance of impropriety, which in part includes the obligation to avoid actions which call into question “public confidence in the integrity and impartiality of the judiciary.” Justice Ginsburg has arguably violated this Canon by making comments about matters political that are inappropriate for a member of the Federal Judiciary. These are understandably serious charges to level against a Supreme Court Justice, but the Canons seems clear, and so do Justice Ginsburg’s comments unfortunately. Once again, these Canons are merely advisory when it comes to Supreme Court Justices, but if one were to apply the same rules to members of the highest court that apply to every other member of the Federal Judiciary it strikes me that there would be a good argument in favor of the proposition that Ginsburg went too far.

Law Professor Stephen Gillers, who specializes in teaching and writing about legal ethics argues that Ginsburg has clearly crossed the line:

Apart from judicial ethics, the structure of the U.S. Constitution makes the judiciary the nonpolitical branch of government. The executive and legislature are the political branches. Members of Congress and presidents have constituents and seek votes. Federal judges do not.

Why do we keep judges out of politics? To protect the rule of law.

We want the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated. It’s not that judges don’t disagree among themselves. But disagreements must be over legal principles, not a ruling’s effect on a political candidate or party.

At his 2005 confirmation hearing, Chief Justice Roberts said: “Judges are like umpires. Umpires don’t make the rules, they apply them.” It was, he said, a judge’s “job to call balls and strikes and not to pitch or bat.” Although we can debate whether the justices have always been scrupulous about honoring this ideal, it is the vision to which we aspire and one we want the public to trust. Sadly, Justice Ginsburg’s remarks will encourage public cynicism instead.

Georgetown Law Professor Paul Butler argues that Ginsburg chose to speak out because she is aware of the dangers of a Trump Presidency. Even if that’s true, and I acknowledge that the idea of Donald Trump becoming President is highly concerning to say the least, it doesn’t really answer the legal ethics question of whether or not it was or should be proper for Ginsburg or any other member of the Court to speak out on political matters like this. Erwin Chemerinsky, Dean of the University of California-Irvine Law School defends Ginsburg’s right to speak out:

Perhaps most surprising was her sharp criticism of Donald Trump and her worrying about what the country would be like with him as president. But she simply voiced what countless people, liberal and conservative, think about the possibility of a Trump presidency and no one should be surprised that Ginsburg thinks this too. The judicial code of ethics says that judges are not to endorse or oppose candidates for elected office. But these provisions do not apply to Supreme Court justices.

Nor do I believe that such restrictions are constitutional or desirable. The First Amendment is based on the strong presumption that more speech is beneficial because it means we are all better informed. I think it is valuable for people to hear what the justices have to say on important issues. As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views. We are in a relatively new era of public statements by justices, and I applaud it.

Chemerinsky makes a persuasive argument here, and there is something to be said for an environment where we don’t pretend that Judges are political neuters who don’t come into the Judiciary with long-standing political and philosophical beliefs that shape the way they approach the cases they are asked to decide. The very fact that we speak of a “conservative” and “liberal” wing of the Supreme Court demonstrates just how silly that idea actually is. At the same time, though, Judges ought to act in a manner that at least gives the reassurance that they aren’t acting as political activists on the bench. That reassurance is destroyed when they start to endorse or attack candidates for political office, though, and in an era when the two political branches of the Federal Government are already viewed cynically by most Americans, the idea that the same thing would happen to the third branch is troubling to say the least. In the end, I doubt anything will come of Ginsburg’s comments, but it is unfortunate that she made them nonetheless.

FILED UNDER: Campaign 2016, Donald Trump, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Rob Prather says:

    Josh Barro has a nice take on this at Business Insider. He says basically that the idea that the court is apolitical is a fiction, but a useful fiction. She made a mistake in saying these things.

  2. SKI says:

    while I was surprised that Ginsburg was that candid, I’m not sure it’s all that different than O’Connor, before participating in Bush v. Gore, having publicly commented (albeit not to a reporter directly) that Gore’s apparent victory was “terrible”. Or Scalia flying with Cheney but not recusing himself from a case against the VP.

  3. Bob@Youngstown says:

    First reaction:
    First Amendment does not apply to Supreme Court Justices ?????

  4. Jenos Idanian says:

    @SKI: Or Scalia flying with Cheney but not recusing himself from a case against the VP.

    I have it on the very best authority that the only thing discussed on that plane were grandchildren.

  5. Guarneri says:

    @Jenos Idanian:

    Liar. And yoga poses.

  6. C. Clavin says:

    If she commented on serious politics it would be dicey.
    Commenting on a reality TV star, and colossal buffoon, who stands zero chance of ever holding public office above dog-catcher seems harmless.
    If anyone disagrees with what she said about the reality TV star, then they have serious mental health issues and they should focus more on those issues and less on comb-overs.

  7. Guarneri says:

    It shows a sense of judgment beneath, and lack of respect for, the position she holds. She’s not in the comments section of a political blog, and one now cannot discern her real character.

  8. Barry says:

    Or Roberts ruling on a case in which he was formerly counsel.

    Or Bush v. Gore.

    Doug, that ship sailed a long time ago, and it had the GOP flag when it did.

  9. Pch101 says:

    Scalia moaned that the Washington Post was too liberal, while he claimed that he was a reader of Murdoch’s WSJ and the Moonies’ Washington Times. Those groups are more likely to have future dealings with the Supreme Court than Trump ever will.

    I would agree that RBG should have held her tongue but I can’t recall that there were any conservatives who lamented Scalia’s comments. The usual GOP double standard.

  10. Paul L. says:

    Fun watching the progressives who were OUTRAGED at Alito’s (That’s) not true” at the SOTU now defending our most eminent living eugenicist.

  11. Jen says:

    Eh, I can’t get too worked up over this. After all, three conservative justices (Scalia, Thomas, and Alito) blew off the State of the Union speech in 2015. Scalia had skipped them for years calling them “juvenile.” Alito was ticked because Pres. Obama didn’t think much of the Citizens United decision. Thomas refuses to recuse himself from issues that his wife has worked on. Scalia had a friendship with Cheney.

    So Ginsburg has an opinion on Trump. I’m a little surprised that she was that candid, but really this doesn’t change my opinion of anything: her, the Court, or, for that matter, Trump.

  12. James Pearce says:

    It would seem Ginsburg has entered the DGAF phase of her judicial career.

  13. steve s says:

    Interesting fact: while they still vote majority GOP, college-educated whites have been trending away from the GOP in elections for 10 years now.

  14. stonetools says:

    @James Pearce:

    I agree with you, she is out of f&*ks. I’m sure she is getting ready to retire and looking forward to Hillary picking her replacement next year.
    Post Bush V Gore, all talk of an apolitical court just seems ludicrous. That horse has left the stable.
    Besides, isn’t RBG simply right? Tell the truth, now…

  15. gVOR08 says:

    @steve s: Oddly, walking in the door five minutes ago I heard Rachel Maddow cite polling that that too has changed, college educate whites are now favoring Hillary.

  16. gVOR08 says:

    He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.

    Would it be considered out of line if she noted Trump was 70 years old? If she said he wears blue jackets and red ties a lot? If she said he has weird blondish hair on a Frankenstein scalp? What she said is a simple statement of observed fact. Why should this be a problem?

    As Betty Cracker notes at Balloon Juice, like Obama, she may just have no more fwcks to give.

    Doug notes

    Judges ought to act in a manner that at least gives the reassurance that they aren’t acting as political activists on the bench.

    I think that boat’s sailed.

  17. C. Clavin says:

    @Guarneri:
    Her charchter is that she cares more about her country than her legacy. That’s impressive charachter. As someone more concerned about team politics than the health of the Republic, you should take a lesson.

  18. Robert Clausen says:

    Canon Two states that Judges should avoid the appearance of impropriety, which in part includes the obligation to avoid actions which call into question “public confidence in the integrity and impartiality of the judiciary.”

    TOO LATE – that confidence was lost long ago.

  19. steve says:

    So a Judge can be married to an actual real live political activist, and that is OK. If a judge comments upon politics, that is not OK.

    Steve

  20. Davebo says:

    @steve: IOKIYA not at all Republican.

    James has given up the illusion of moderation. Doug avoided it for years because after all, he’s not a Republican, he just votes for them.

    The Trump tidal wave washes over the sea of GOP political and…

    In the end, despite their expressions of repulsion, they fall in line.

  21. Just 'nutha ig'rant cracker says:

    @Guarneri:

    one now cannot discern her real character.

    You can’t see that she’s sane and is concerned about the country? Really?

  22. David M says:

    The question is whether Trump is dangerous enough that People have an obligation to speak out, no matter the situation. There’s a decent argument to be made that not enough people are objecting to Trump as he attempts to mainstream some truly objectionable and potentially dangerous ideas.

  23. Slugger says:

    She should have kept quiet. However, I don’t think that the word “attack” is appropriate whenever someone thoughtlessly shoots of his/her mouth.
    Also, a presidential candidate should develop a bit thicker skin.

  24. michael reynolds says:

    During the rise of the Third Reich a very few, very brave jurists spoke out. Should they have kept quiet?

  25. Jenos Idanian says:

    @michael reynolds: During the rise of the Third Reich a very few, very brave jurists spoke out. Should they have kept quiet?

    ZOMG, you’re right! I’ve been blind all along! How could I not see that Trump is JUST LIKE HITLER! And when you’re up someone who’s JUST LIKE HITLER, then all the rules don’t apply, and the person who’s JUST LIKE HITLER must be stopped, by any means necessary. And whoever does stop him, by any means necessary, will be a hero. Who will step up and succeed where Claus Von Stauffenberg failed?

    We’ve already had one attempt to assassinate Trump, and it failed. But keep calling him Hitler, and maybe you can find another gullible nut with delusions of heroism to try to take him out again.

    Here’s ahint, michael, because someone has to tell you: if you think you might be too drunk to post, then you definitely are too drunk to post. And if you’ve been drinking at all, you’re probably too drunk to post.

    You went full Godwin, man. You never go full Godwin.

    And you’re allegedly a good writer. Why would you resort to the cliche? Especially such a stupid one?

  26. SC_Birdflyte says:

    @Jenos Idanian: Huey Long had his Dr. Weiss, George Wallace had his Arthur Bremer, and Donald Trump may profit by their example. Demagoguery that uses the threat of violence against others sometimes leads to blowback.

  27. Scott says:

    A couple of thoughts:

    One, the Supreme Court has been a political punching bag for a long time (and yes, from both sides). I guess the expectation is that they are supposed to just take it and smile.

    Two, at many state levels, judges are elected. So, at least at that level, judges are by default political.

    Three, the Supreme Court is the equal third branch of government. Why shouldn’t it have a political aspect to them?

  28. C. Clavin says:

    @Jenos Idanian:
    If you do not see parallels then you’re exactly as smart as I thought.
    Is Trump Hitler? Of course not, and Reynolds never said he was.
    But a demagogic and authoritarian opportunist taking advantage of an uneducated and disenfranchised base thru a populist, racist, and nationalistic message?
    Oh wait…you are the uneducated and disenfranchised base…of course you a will never see it thru your rage over your diminished white privilege. Never mind.

  29. C. Clavin says:

    I find it ridiculous that after Bush v. Gore, Citizens United, and Hobby Lobby, that anyone is going to complain about a criticism of an orange faced buffoon-like liar from a Justice.

  30. MBunge says:

    This is the best example yet of how we ended up with BOTH Trump and Clinton in the first place.

    What Ginsberg did was wrong. Period. That others have also done wrong doesn’t change that. And if this were weeks before the election and Trump and Clinton were neck-and-neck, you could try and excuse it as real concern for the country. But it is months before the election and Trump is behind by a decent margin in almost every poll. This wasn’t Ginsberg bravely speaking truth to power. This was a member of our privileged elite indulging her personal, petty, partisan impulses because she doesn’t give an f about anything but her side winning.

    The “you lie” business with Obama was the same thing, but at least that could be downplayed as a fool shooting his mouth off without thinking. This is an intelligent and supposedly responsible person knowing what the established standard is, knowing why that standard is important and both deliberately and casually violating it for no reason but her own selfish satisfaction.

    And yes, Republicans have been more guilty of this stuff than Democrats but if both become equally bad at it, this country truly will become ungovernable and the results of that will not be good for anyone.

    Mike

  31. KM says:

    I find it interesting that one of the major complaints about Scalia’s eventual replacement is that they must not be too liberal since he was a conservative – thereby implicitly stating the court has ideologies and opinions beyond the merits of a case that matter. Yet we act shocked when a judge expresses a somewhat partisan opinion out loud since judges should be impartial and above politics in public.

    We need to make up our minds: are courts to be havens of non-partisanship or can they be full of people who can and will express their opinions out loud?

  32. wr says:

    @MBunge: “This is the best example yet of how we ended up with BOTH Trump and Clinton in the first place.”

    Sorry… but what a ludicrous pile of nonsense. “How we ended up with both Trump and Clinton”? We “ended up” with Clinton because she is a remarkably qualified candidate with experience in multiple branches of government who is running on a platform that, if even partially enacted, will greatly improve the lives of millions of Americans.

    We ended up with Trump because the Republican party sold its soul to racist hicks and losers, after manipulating them with obvious fear techniques for decades.

    But you’re a Republican… so both sides did it.

    Don’t try to foist your people’s failure on the sane Americans who actually believe in a future for the country. Trump is all yours. Own him.

  33. wr says:

    @KM: “We need to make up our minds: are courts to be havens of non-partisanship or can they be full of people who can and will express their opinions out loud?”

    Well, that’s easy. Our courts are havens of non-partisanship who inevitably reach decisions supporting the most insane right wing positions every time — but only out of a non-partisan love of the constitution.

  34. C. Clavin says:

    @MBunge:

    What Ginsberg did was wrong. Period.

    No…you are wrong. Period.
    Trump poses a real threat to the Republic. The reasons are myriad.
    It is the duty of EVERY SINGLE PERSON that loves this country to recognize that fact and stand up and say something.
    The press isn’t going to ever take this charlatan to task for his behavior, his lies, his dangerous policy proposals.
    Good for RGB for taking a stand in favor of her country over her legacy. Or, maybe taking a selfless stand against this buffoon will, in fact, enhance her legacy.

  35. Moosebreath says:

    @MBunge:

    “What Ginsberg did was wrong. Period. That others have also done wrong doesn’t change that.”

    I agree with you. It is not Ginsberg’s place, any more than it was Alito’s place to mouth the words “Not true” on camera during one of Obama’s State of the Union speeches. Her role does require her to stay on the sidelines.

  36. Bob@Youngstown says:

    @MBunge:

    (Ginsburg is) a member of our privileged elite indulging her personal, petty, partisan impulses because she doesn’t give an f about anything but her side winning.

    And thus exposes Mike’s petty, partisan bias.

    Had Ginsberg actually ATTACKED Trump, eg called him an a**hole or such, I might be more sympathetic to your outrage. But what she has said thus far has been largely factual.

    AS KM pointed out above, the parties appear to jockey to nominate justices with a specific ideology, but then expect them to deny any ideology.

    Really ??

  37. michael reynolds says:

    @Jenos Idanian:

    I don’t know why I bother since everyone else has already pointed out your multiple stupidities, but what the heck:

    A tenuous peace in the upper echelons of the Republican Party showed signs of unraveling this weekend as a major donor compared Donald J. Trump to Hitler and Mussolini, Mr. Trump and Mitt Romney reignited their feud, and one of Mr. Trump’s aides took a shot at an important campaign ally.

    Meg Whitman, the chief executive of Hewlett Packard Enterprise and a major contributor to Republican candidates, railed against Mr. Trump on Friday at a closed-door meeting of Republicans in Park City, Utah, comparing him to the Axis leaders, according to several people in attendance who declined to be identified because the discussion was private.

    Your candidate is a racist, misogynist fascist – according to a number of Republicans. You support a racist, misogynist fascist, a candidate so toxic that no living GOP president or former GOP presidential nominee supports or will appear alongside.

    As for my work, dude, I have never at any time to anyone claimed to be a great writer. But being the good market-loving little twit you are, I’d think you’d accept the judgment of the marketplace. To whit: lifetime writing income of about $15 million since 1989. Translations into, I don’t know, let’s say 20 languages. I can’t keep track. Oh, and critical support as well – I think my aggregate Goodreads number is a hair over 4 stars – in a career that has covered every genre of kidlit – sci-fi, fantasy, romance, humor, horror and alt history, and in every age group from early chapters books to the bleeding edge of YA.

    I seem to recall that you work phone sales. I’m sure you’re very good at it.

  38. PJ says:

    Ginsberg is a Jew born in 1933.

    No wonder she is speaking out.

  39. al-Alameda says:

    I think that Justice Ginsburg is, unintentionally, doing America a favor.

    Really, her remarks constitute a very high level of trolling, and represent tossing red meat into the Trump cage. There is no doubt that her comments will inevitably lead Trump to issue various retaliatory remarks that will please Trump supporters, but will show all others why a guy like Trump should not be trusted with matches.

  40. Moosebreath says:

    @al-Alameda:

    Reality works faster than you:

    “”Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!” Trump tweeted.”

  41. al-Alameda says:

    @Moosebreath:
    lol … thank you.
    Trump always fulfills all of my low expectations

  42. steve s says:

    Of course they were inappropriate comments. That’s why she’s Notorious.

  43. Gustopher says:

    Hardly an attack. When the Notorious RBG attacks, the results are devastating. If she attacked, there would be nothing left of Trump other than an orange smear on the sidewalk with a combover.

  44. Andrew says:

    These justices are not monks who took a vow of silence.

    They are not explicitly saying that are going to vote or rule in a certain way regardless of evidence at hand.
    In this case:
    RBG is merely commenting on her opinion regarding Mr. Trump as a candidate. Not a case that is before her with him included.

    While I may not be happy with certain justices who intimately involved with a person or matter, and then get to have a say in the outcome of a case…I have to give the benefit of the doubt they will professional in the matter. There is little choice in that regard, especially with someone who is not elected to their position.

  45. Franklin says:

    Her comments were pretty mild, considering the subject matter. That said, I would have preferred her to not risk her standing. Plenty of other respected people are making the same case as her.

  46. PJ says:

    I propose a compromise.

    Ginsburg resigns from the Court, but so does also Alito.

  47. Jen says:

    @MBunge: The “you lie” was from Rep. Joe Wilson of SC. Justice Alito mouthed “not true.”

    I think it’s important to keep all of the different breaches of appropriate behavior that this president has had to endure separate.

  48. Jenos Idanian says:

    @michael reynolds: So, you’re walking back the Nazi comparison?

    Nope, you’re doubling down, by using Argument by Authority. And your “authority” are anonymous people reporting on what was said in a private meeting. That’s seriously lame. It’s the kind of thing I’d expect from wr or Cliffy, not you.

    And you’re making the same argument that so many others are making — “vote Hillary, because Trump’s worse.” Can’t you come up with a better one?

    But then, I guess you reserve the good stuff for the writing that pays the bills. Can’t blame you there.

    BTW, while poking through tvtropes.org (one of the WORST time-suckers on the internet), I found a reference you might find amusing…

  49. Jenos Idanian says:

    But back to Ginsberg: between this and her history of falling asleep in public — even while on the bench — it might be time for her to retire. Or, possibly, impeached — for the good of the Court and the country, of course.

    One wag suggested that if Trump wins, he should request that Ginsberg administer his oath of office. That could be quite entertaining…

    Another person has suggested that Ginsberg has done us a great service. By opening her mouth like this, it could make it easier to question future nominees. Just ask them their opinions on cases that Ginsberg has already said were decided “wrong.”

  50. C. Clavin says:

    @Jenos Idanian:
    First it was JUST LIKE HITLER.
    Now…as usual…you simply move the troll-posts.
    If I got made a fool, like you did over Benghazi, I’d just STFU.
    But you don’t have the balls.

  51. C. Clavin says:

    @Jenos Idanian:
    Oh…and nice straw-man, straw-man.

    And you’re making the same argument that so many others are making — “vote Hillary, because Trump’s worse.”

  52. MarkedMan says:

    Personally I think she had the right to comment, but given the importance of separation of powers in our country, I wish she had not commented.

    As for the “but Repubs did worse arguments”, well the reality is that we as an American society have different expectations of the two major parties. Democrats are held to standards republicans are not held to any standards of truthfulness or probity by the general public or the media. It’s “not fair” but as JFK once advised, ‘life is not fair’. The only way we could get the populace to cease holding Dems to standards is to become like Repubs

  53. gVOR08 says:

    @Paul L.: Does it make any difference to you that Alito’s “not true” was a lie, while RGB’s remarks about Trump are obviously true.

  54. Neil Hudelson says:

    @Jenos Idanian:

    But then, I guess you reserve the good stuff for the writing that pays the bills. Can’t blame you there.

    Ok…that was a pretty good burn. Just saying.

  55. michael reynolds says:

    @Jenos Idanian:

    Yes, I am doubling down: Trump is a fascist. Trump is a racist, misogynist, un-American, fascist. Also a fraud, a liar, a cheat, a man who leers at his own daughter, and in addition a tasteless, tacky clown. A self-promoting buffoon. A pig.

    And also, like Hitler, also a man devoid of taste.

    You know, your kind of guy.

  56. michael reynolds says:

    @Jenos Idanian:

    And are you actually so stupid you think I’m embarrassed to occupy page after page of TV Tropes? I love TV Tropes. I’ve spent many long hours there. Your contribution to the culture is what, “Hi, I’m sorry to interrupt you during dinner, but I’m calling on behalf of phony charity. . .”

    Not surprising you’d love Trump. Takes a parasite to love a parasite.

  57. slimslowslider says:

    @michael reynolds: The Bald of Awesome! So glad you are back commenting here.

  58. michael reynolds says:

    @slimslowslider:

    Bald of Awesome! I loved that. They make some errors in TVTropes, but I am very definitely bald.

  59. Jenos Idanian says:

    @michael reynolds: Actually, the TV Tropes thing represented mixed feelings on my part. I love the site, too, and to see someone I dislike get such notice was… discomforting. But you earned it, despite what you show here.

    And back to Trump being a fascist. Are you one of those who just knee-jerkedly calls anyone to your right that you don’t like a fascist? Because I’ve yet to see very much evidence that Trump is a fascist, by the actual definition of the term.

    Fascists want government to control business. Trump, if anything, wants business to control government.

    Trump’s a xenophobe? He employs a LOT of aliens, including, I’d presume, a lot of Mexicans. But he’s smarter than you are, because he can actually tell the difference between LEGAL and ILLEGAL aliens.

    Trump’s a sexist? He’s employed a LOT of women, and put them in positions of power and authority, and supported them.

    What’s got you confused is that Trump says bad things about people, and you — as a professional wordsmith, I suppose — think more of words than deeds.

    Meanwhile, Hillary says the right things, so she’s great, right?

    How about that time Trump went all the way to the Supreme Court because some people made a movie that said bad things about him? Whoops, that was Hillary.

    How about that time Trump organized a massive public campaign to discredit and destroy women who were saying bad things about the sexual proclivities of him and his spouse? Nope, that was Hillary, too.

    How about that time someone looked at Trump’s salary practices, and found he was paying women significantly less than the men working for him? Darn it, that was Senator Hillary and Secretary Hillary once more.

    Then there was that time Trump was “grossly negligent” with national security, and left a LOT of classified material vulnerable to being hacked by our enemies? Man, I keep getting it wrong. That was Hillary yet again.

    So many reasons you say you’re against Trump are based on what he says. And in so many cases, they fit far better what Hillary does. Are you really that effing shallow that you prefer the one who says the right things, but does the wrong things?

  60. Bob@Youngstown says:

    @Jenos Idanian:
    click off

  61. An Interested Party says:

    Because I’ve yet to see very much evidence that Trump is a fascist, by the actual definition of the term.

    Here, let me help you out…

    One of the most-read takes on fascism comes from Italian philosopher and novelist Umberto Eco in an essay for the New York Review of Books titled “Ur-Fascism.” Eco emphasizes the extent to which fascism is ad hoc and opportunistic. It’s “philosophically out of joint,” he writes, with features that “cannot be organized into a system” since “many of them contradict each other, and are also typical of other kinds of despotism or fanacticism.”

    With that said, it is true that there are fascist movements, and it’s also true that when you strip their cultural clothing—the German paganism in Nazism, for example—there are common properties. Not every fascist movement shows all of them, but—Eco writes—“it is enough that one of them be present to allow fascism to coagulate around it.” Eco identifies 14, but for this column, I want to focus on seven.

    They are: A cult of “action for action’s sake,” where “thinking is a form of emasculation”; an intolerance of “analytical criticism,” where disagreement is condemned; a profound “fear of difference,” where leaders appeal against “intruders”; appeals to individual and social frustration and specifically a “frustrated middle class” suffering from “feelings of political humiliation and frightened by the pressure of lower social groups”; a nationalist identity set against internal and external enemies (an “obsession with a plot”); a feeling of humiliation by the “ostentatious wealth and force of their enemies”; a “popular elitism” where “every citizen belongs to the best people of the world” and underscored by contempt for the weak; and a celebration of aggressive (and often violent) masculinity.

    Trump isn’t an ideologue; he’s an opportunist.

    Now, let’s look at Trump. His campaign revolves around one theme: That the United States is weak, that it loses, and that it needs leadership to become “great again.” “We don’t have victories anymore,” he said in his announcement speech. “When was the last time anybody saw us beating, let’s say, China in a trade deal? They kill us. … When do we beat Mexico at the border? They’re laughing at us, at our stupidity.” He continued: “The U.S. has become a dumping ground for everybody else’s problems,” and “Our enemies are getting stronger and stronger by the way, and we as a country are getting weaker.”

    This includes unauthorized immigrants, and now refugees, whom he attacks as a menace to ordinary Americans. The former, according to Trump, take jobs and threaten American safety—“They’re bringing drugs. They’re bringing crime. They’re rapists.”—while the latter are a “Trojan horse.” But Trump promises action. He will cut new deals and make foreign competitors subordinate. He will deport immigrants and build a wall on the border, financed by Mexico. He will bring “spectacular” economic growth. And Trump isn’t an ideologue; he’s an opportunist who borrows freely from both parties.

    How does he build favor with Republican voters? He shows bravado and “strength,” disparaging weak opponents. He indulges racist rhetoric and encourages violence against protesters. He speaks directly to the petite bourgeoisie in American life: managers, public employees, small-business owners. People squeezed on all ends and desperate for economic and cultural security against capitalist instability and rapid demographic shifts, as represented by President Obama. Elect him, Trump says, and he’ll restore your security and American greatness. “You’re going to say to your children, and you’re going to say to anybody else, that we were part of a movement to take back our country. … And we will make America great again.”

    Alone and disconnected, this rhetoric isn’t necessarily fascist. Some of it, in fact, is even anodyne. But together and in the person of Donald Trump, it’s clear: The rhetoric of fascism is here. And increasingly, the policies are too. The only thing left is the violence.

  62. Jenos Idanian says:

    @An Interested Party: I’ll see your Slate and raise you one Thomas Sowell:

    It bothers me a little when conservatives call Barack Obama a “socialist.” He certainly is an enemy of the free market, and wants politicians and bureaucrats to make the fundamental decisions about the economy. But that does not mean that he wants government ownership of the means of production, which has long been a standard definition of socialism.

    What President Obama has been pushing for, and moving toward, is more insidious: government control of the economy, while leaving ownership in private hands. That way, politicians get to call the shots but, when their bright ideas lead to disaster, they can always blame those who own businesses in the private sector.

    One of the tenets of fascism is that individuals own companies, but the government controls the economy. People own things, but the government controls what they can do with them.

    Which is a pretty good summation of contemporary liberalism. You can own things, but you don’t control them.

    “Liberal fascism,” indeed.

  63. Barry says:

    @MBunge: “What Ginsberg did was wrong. Period. That others have also done wrong doesn’t change that. ”

    Yes, it does. You and yours don’t have a right to even bring up standards which you’v cheerfully violated.

  64. Barry says:

    @Guarneri: “It shows a sense of judgment beneath, and lack of respect for, the position she holds. She’s not in the comments section of a political blog, and one now cannot discern her real character.”

    Actually, we can. Honest and brave.

  65. Barry says:

    @Jenos Idanian: “I’ll see your Slate and raise you one Thomas Sowell:”

    More accurately, you fail to see his Ecco, and lower by a Thomas Sowell

  66. stonetools says:

    t@MBunge:

    The Republicans have taken, and are taking, a giant dump on the standards relating to judicial nomination by not allowing a confirmation hearing on a duly nominated candidate for the Supreme Court. Since the Republicans aren’t obeying standards, I don’t think the Democrats should be condemned for not complying with standards. No Republican has the moral high ground to attack Justice Ginsburg on this.
    I note that Doug just shrugged his shoulders when McConnell refused to hold hearings. Well, I’m shrugging back at RBG’s violation of norms.

  67. James Brown 32 says:

    Frankly the entire court except for Kennedy is a farce. Their positions are entirely predictable on nearly every issue. One thing you you expect from a Judge is insight you hadn’t quite considered and for them to consider multiple factors with varying weights given to those factors. We really should not not be able to say for certain how any of them will vote on an issue because they each have varying experience and life context. Instead…they are merely a super legislature that has 8 politicians and 1 actual Judge….basically a liberal and conservative kangaroo court.

    Im sorry, but Im seeing the Democratic party slowly slide down the same pathway as Republican did because they cant “police” or be critical of themselves. EVERY SINGLE THING always comes down to “But Republicans….” to explain away their behavior.

    RBG should have retired years ago….she or any other 80 year old don’t have the life context to parse today’s questions…she entered middle age in the 1970s–40 years ago. The world is nothing like it was then. Its not even like it was 20 years ago.

    Now she’d old and cantankerous….and still a supreme court justice. Hopefully one day Congress realizes that lifespans have lengthened enough to make lifetime appointments to the Court impractical and makes a change.

  68. MBunge says:

    @stonetools: Since the Republicans aren’t obeying standards, I don’t think the Democrats should be condemned for not complying with standards.

    And if every one else jumps off a bridge, you will too?

    Mike

  69. Jenos Idanian says:

    @Barry: I KNEW that seemed a bit familiar. Scott Adams saw that same article, went to Eco’s list of defining traits, and came up with the opposite conclusion.

    Just for giggles, let’s look at how Obama ranks on Eco’s points:

    1) No.

    2) At first, no. But he has elements of it.

    3) Oh, hell, yeah.

    4) Oh, hell, yeah.

    5) No. More lower class than middle class.

    6) Oh, hell, yeah.

    7) He talks a good game, but lets it show through.

    8) Oh, hell, yeah.

    9) Oh, hell, yeah.

    10) Oh, hell, yeah.

    So, that’s 6 for Obama, with two more partials. Ya wanna go for Hillary next?

    One more point from Adams:

    Generally speaking, if your word has a fourteen-element definition with a “pick any” quality to it, you don’t have a word. You have a list. So I would say that “fascism” is – first and foremost – not an actual word with meaning (agreed meaning) in the English language. So if you use the word as a label, you are literally talking nonsense.

    And one final quote, this one from P. J. O’Rourke about being called a Nazi: “Say what you want about the Nazis, no woman has ever had a fantasy about being tied up and beaten by a man dressed as a liberal.”

  70. MBunge says:

    @C. Clavin: It is the duty of EVERY SINGLE PERSON that loves this country to recognize that fact and stand up and say something.

    That reminds me of that bit from “A Man for All Seasons.”

    Roper: So now you’d give the Devil benefit of law!
    More: Yes. What would you do? Cut a great road through the law to get after the Devil?
    Roper: I’d cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

    Mike

  71. An Interested Party says:

    One of the tenets of fascism is that individuals own companies, but the government controls the economy. People own things, but the government controls what they can do with them.

    Which is a pretty good summation of contemporary liberalism. You can own things, but you don’t control them.

    “Liberal fascism,” indeed.

    Ohhhh, so you’re as sloppy in your thinking as Jonah Goldberg…hardly surprising…having the government involved in the economy and social life through regulations, laws, etc. is hardly fascism…try harder next time, sweetie…

    So I would say that “fascism” is – first and foremost – not an actual word with meaning (agreed meaning) in the English language. So if you use the word as a label, you are literally talking nonsense.

    And yet you are more than happy to apply the word to modern liberalism…

  72. An Interested Party says:

    Frankly the entire court except for Kennedy is a farce. Their positions are entirely predictable on nearly every issue. One thing you you expect from a Judge is insight you hadn’t quite considered and for them to consider multiple factors with varying weights given to those factors. We really should not not be able to say for certain how any of them will vote on an issue because they each have varying experience and life context. Instead…they are merely a super legislature that has 8 politicians and 1 actual Judge….basically a liberal and conservative kangaroo court.

    Do you feel the same way about the Warren Court? Who are the 5 or 6 Justices over the last 50 years that you admire?

    RBG should have retired years ago….she or any other 80 year old don’t have the life context to parse today’s questions…she entered middle age in the 1970s–40 years ago. The world is nothing like it was then. Its not even like it was 20 years ago.

    So what should be the cutoff age? 80? 70? 65? As for “cantankerous”….that’s quite amusing…”cantankerous” compared to whom? Antonin Scalia? Clarence Thomas?

  73. Bob@Youngstown says:

    @James Brown 32:

    EVERY SINGLE THING always comes down to “But Republicans….” to explain away their behavior.

    Interesting, I was just saying the other day (when a republican was asked about their candidate’s behavior) that the question is invariably deflected by saying ” but look what Bill did”.

    James, you see what you want to see, and are blind to the rest.

  74. Jim Brown 32 says:

    @Bob@Youngstown: I think I alluded in the sentence before that….That Republicans have ALREADY jumped the shark. Your party is the last one standing. Do us a favor and impose a better standard…why compare yourself with rump party?

  75. Jim Brown 32 says:

    @An Interested Party: The Warren Court recognized that there was a role to fill in an era characterized by a failing Congress. Many of that courts Justices made ruling on civil liberties that were counter to ideological trends….sometimes even counter to their liberal or conservative backgrounds.

    1. Warren
    2. Marshall
    3. Powell
    4. Blackmun
    5. Kennedy

  76. Just 'nutha ig'rant cracker says:
  77. Pch101 says:

    @An Interested Party:

    you’re as sloppy in your thinking as Jonah Goldberg

    When did Jonah Goldberg start thinking? I am aware that he produces a lot of word salad for reactionaries, but there doesn’t seem to be much thought that goes into it.

  78. Pch101 says:

    Meanwhile, the latest NBC/WSJ swing state poll shows Trump having 0% black support in Ohio and Pennsylvania. No, that wasn’t a typo: Zero percent.

  79. An Interested Party says:

    @Jim Brown 32:

    Interesting that you have Marshall and Blackmun on your list…they were very liberal (well, Blackmun ended up being liberal later in his tenure) and would probably be voting with the current liberal bloc on the court that you disparage…

  80. stonetools says:

    @MBunge:

    I’m for everyone returning to standards. The minute McConnell begins hearings on Garland, I’ll happily condemn Ginsburg for violating Supreme Court norms. So, you should go ahead and get cracking on convincing McConnell to start hearings. Good luck.

  81. wr says:

    @Jenos Idanian: Thomas Sowell is to Umberto Eco as “Jenos” is to Ruth Bader Ginsburg.

  82. wr says:

    @Jenos Idanian: And it gets better — now little Jenos counters Umberto Eco with… a one-joke cartoonist.

    Of course that’s actually pretty appropriate, since Baby Jenos is a one-joke cartoon.

  83. MBunge says:

    @stonetools:

    So, if you are in a row boat in the middle of the ocean and it’s filling up with water, you won’t bail it out unless the other guy does?

    Mike

  84. Pch101 says:

    Thomas Sowell is one of those columnists who make economic illiterates feel smart.

    Sadly, feeling smart isn’t the same as being smart.

  85. C. Clavin says:

    @MBunge:
    You’ll have to point to the law(s) that RGB broke for that analogy to be applicable.
    All she has done is push the limits of what is acceptable, at risk only to her own legacy, in order to do what she can to protect this country from a charlatan.
    The idea that these Justices aren’t political is preposterous.
    The Thomases worked actively to stop Obamacare.
    Scalia was always making political pronouncements.
    They appointed a President along party lines in a one-time only decision.
    C’mon Mike…

  86. gVOR08 says:

    I’m hearing on the teevee machine that Ginsberg is saying she regrets saying it and will be more circumspect.Regrettable. Regrettable that she’s walking it back. No one should be sanctioned for stating the truth.

  87. al-Alameda says:

    @Jenos Idanian:

    And one final quote, this one from P. J. O’Rourke about being called a Nazi: “Say what you want about the Nazis, no woman has ever had a fantasy about being tied up and beaten by a man dressed as a liberal.”

    Apparently many conservative women (and men) prefer to be dominated by Nazi men in uniform?

  88. Nikki says:

    @gVOR08: She did what she was supposed to do. Nothing wrong with expressing a little regret now.

  89. C. Clavin says:

    This idea about recusal is also preposterous.
    Scalia went hunting with Cheney and when a case involving Cheney came before the court Scalia refused to recuse himself.
    Democrats need to stop being mamby-pambys and getting run over by the Republicans.
    RGB was right…Trump is a phony and would be tragic for this nation if elected.
    The press isn’t going to tell everyone the truth.
    It’s up to Democrats to do it.

  90. KM says:

    @MBunge :

    So, if you are in a row boat in the middle of the ocean and it’s filling up with water, you won’t bail it out unless the other guy does?

    Interesting question. If the other person is refusing to do anything in the face of imminent disaster in a game of chicken, I’d respond with getting rid of everything detrimental in the boat: the water and the spiteful jerk would just sit there. Neither would be conducive to survival so why should both be tolerated? They’re counting on basic decency to not be splashing around asking to get back in the boat but don’t have the decency to help stop the life-threatening leak. Why should I risk my safety to be the adult in that situation?

    Acting up and then trying to put a moral judgement on someone who says they’re entitled to act up if you are is the height of hypocrisy. You don’t get to make etiquette a one-way street; if you start tossing standards you can’t pretend to be outraged others do as well. Republicans started sacrificing the public standards we’ve had for quite some time (disrespecting the President during the SOTU, politics stop at the water’s edge, jurists should be publicly apolitical, etc). Why do they think liberal are required to be adults when they can do whatever they damn well please?

  91. gVOR08 says:

    @al-Alameda: The only real case of this I’m aware of involved Max Mosley and five paid female hookers in “Nazi” uniforms. It was notorious both because he was at the time President of the FIA, the international auto racing organization, and is the son of Oswald Mosey, leader of the pre WWII British Union of Fascists.
    _______
    Nazi is in quotes as he was able to win a court case against the newspaper that published the story claiming they weren’t “Nazi” uniforms as they had no Nazi insignia. Just black jackets and uniform hats, nothing else. Anyone looking at a picture would say “Nazi”, but I suppose they could have been Swansea meter maid uniforms or something. (The You Tube video seems to have gone down the memory hole.)

  92. Guarneri says:

    Now that she has herself admitted the obvious:

    https://mobile.twitter.com/scotusreporter/status/753592018564112388

    I wonder how many of you slobbering sycophants who have mind numbingly done your usual day in and day out arse-licking of all things Democrat will admit the obvious, and simply acknowledge what she must have realized in a moment of clarity.

  93. al-Alameda says:

    @Guarneri:

    I wonder how many of you slobbering sycophants who have mind numbingly done your usual day in and day out arse-licking of all things Democrat will admit the obvious, and simply acknowledge what she must have realized in a moment of clarity.

    I agree, and I will acknowledge that – unlike her right wing partisan colleagues – on the bench, she apologized. Ultimately, I think that tells us quite a bit about her conservative colleagues, don’t you?

  94. Jen says:

    She apologized and said she shouldn’t have commented.

    I’m sure that Trump, showing the grace and diplomacy for which he is known, will graciously accept and apologize for his own rash responses. /s

  95. C. Clavin says:

    @Guarneri:
    She was dead wrong to say whatever she said…which was hardly an apology.
    What she said was dead accurate. No need to apologize for being right. Something you, apparently, have zero experience with.

  96. Jen says:

    OT: Number of outlets (Roll Call, The Hill, Indy papers) reporting that Pence is Trump’s VP pick.

    Interesting.

  97. Pharoah Narim says:

    @An Interested Party: There is a difference in evaluating a problem and coming to a conclusion that a dyed in the wool liberal supports is different that being an ideological liberal (or conservative for that matter) and applying those filters to problems out of the gate. Each of those Justices also took positions conservatives supported….they were independent thinkers. Not what we havevtoday…which are political rubber stamps.

  98. stonetools says:

    So Ginsburg backs down after a volley of criticism led by the supposedly librul media champions NYT and WaPo. Great. I’m sure MBunge and others feel vindicated.

    Meanwhile, the stonewalling of Garland by McConnell- a far greater violation of norms that actually impairs the functioning of the Supreme Court-goes on unremarked upon. And “Justice” Thomas’ wife lobbying on behalf of right wing causes also continues, with nary a peep from anyone.
    Guess the IOKIYAR rule still remains the law of the land.

  99. Bob@Youngstown says:

    So the foremost advocate of avoiding ‘political correctness’ says that a supreme court justice’s “mind is shot” because she said out loud what she is thinking.

    How could Justice Ginsburg be so politically incorrect ! (Maybe Donald thinks that arena is his exclusive territory)

    Her saying that he has an ego is not really comparable with Donald saying that a sitting judge is mentally disabled.

    Thin skin indeed!

  100. Guarneri says:

    Blah, blah, blah

    Keep on lick’n.

  101. george says:

    @gVOR08:

    I’m hearing on the teevee machine that Ginsberg is saying she regrets saying it and will be more circumspect.Regrettable. Regrettable that she’s walking it back. No one should be sanctioned for stating the truth.

    Unfortunately in politics truth tends to be subjective – everyone is sure their side is good and the other side is evil. What if Roberts had said that Clinton wasn’t fit to be President, speaking the ‘truth’ as he saw it. These things always go both ways – if justices on one side start openly endorsing candidates, does anyone really believe justices on the other side won’t do the same?

    Though maybe that’s what Ginsberg had in mind initially – the progressive justices would slam Trump, the conservative ones Clinton; possibly it wouldn’t change much, other than lowering the supreme court’s reputation.

  102. stonetools says:

    Oh well, if we wake up to a military coup or WW3 sometime during a Trump Presidency, at least we couldn’t say Ginsburg didn’t try…

  103. Jim Brown32 says:

    @An Interested Party: Why do you continue to try to paint me in a partisan corner? Scalia and Thomas have $hit for brains too. Along with a factions of ideologues ready to defend every dumb thing they do (did is Scalia case )because “But Democrats.. ”

    Who said I have a problem with liberals? Some problems a liberal solution fits the bill…some it doesn’t. That’s what a good judge is supposed to determine. Marshall and Blackmun had sound processes to derive conclusions. If Liberals so happen to support those conclusions…so be it.

    Trust me…I equally disdain both major parties and ideologies that smother politics of today. Bits and pieces of each are fine as long as they are applied judiciously.

  104. An Interested Party says:

    Marshall and Blackmun had sound processes to derive conclusions.

    No argument here…and I’m certainly not bashing Marshall, as he was great Supreme Court Justice, but…

    Marshall once bluntly described his legal philosophy as this: “You do what you think is right and let the law catch up”, a statement which his conservative detractors argued was a sign of his embracement of judicial activism.

    Marshall served on the Court for the next 24 years, compiling a liberal record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects against the government. His most frequent ally on the Court (the pair rarely voted at odds) was Justice William Brennan, who consistently joined him in supporting abortion rights and opposing the death penalty. Brennan and Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled four years later that the death penalty was constitutional in some circumstances. Thereafter, Brennan or Marshall dissented from every denial of certiorari in a capital case and from every decision upholding a sentence of death.

    Hmm, that looks a lot like the current liberal bloc on the Supreme Court…

  105. Jim Brown 32 says:

    @An Interested Party: I disagree. The current liberal block has proven incapable of coming to anything but liberal conclusions. That cannot be said of Blackmun and Marshall…who were personally moderate to conservative. Jim Crow had drifted so far from the 14th Amendment that frankly any action against it would appear radical.