Free speech: Opinions rain down over Ginsburg’s public criticism of Trump

Supreme Court Justice Ruth Bader Ginsburg apologized for what she termed her “ill advised” comments in media interviews revealing her disdain for soon-to-be Republican presidential nominee Donald Trump. She was responding to reactions including  those of The New York Times, July 13, 2016, and The Washington Post, July 12, 2016, who wrote editorials saying that taking sides in the presidential race undermined public faith in the court and its independence.

But at least one legal expert, Law Dean Erwin Chemerinsky, The New York Times, July 12, 2016, was of the opinion that Ginsburg and other justices should speak out publicly. “More speech, especially by thoughtful people, is almost always desirable in a democratic society,” he wrote. ” 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.”

Elura Nanos of Law Newz, July 11, 2016, said she would be horrified if candidates used Supreme Court justices’ endorsements in their campaigns but given Trump’s unprecedented challenge to democratic institutions and values, Ginsburg was right in thinking it was her responsibility to speak out.

Douglas W. Kmiec, The Huffington Post, July 7, 2016, quoted Ginsburg in Republican Party v. Minnesota in which the Court ruled that candidates for judicial office had free speech rights. In dissenting Ginsburg wrote, “The guarantee of an independent, impartial judiciary enables society to ‘withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Without this, all the reservations of particular rights or privileges would amount to nothing.'” Kmiec, though, was not without sympathy for Ginsburg’s decision to speak out, “With respect to the ethic of not pre-deciding a matter before briefing, hearing and deliberation, I am certain Justice Ginsburg observes this maxim in her specific work, and depending upon how you assess her brief commentary contemplating the alarming nature of Mr. Trump, that is either an unfortunate lapse from that principle or one that is unfortunately necessary.”