If America’s political institutions are slowly disintegrating, and it is plausible that they are, it is because they are held together less by rules than by norms. Rules are not always clear, but they are defined by some kind of concrete line and attached to some sort of enforcement mechanism. Norms work differently. They are a shared ethic that rule out certain kinds of behavior on ethical grounds. When they are broken, it is not all at once, but step by step, in a series of incremental, leapfrogging violations by the opposing sides. Ruth Bader Ginsburg’s intervention into the presidential campaign follows this pattern. It is not the first or last violation of a norm, but it is a crucial marker of our political institutions’ progress (or regress) toward complete polarization.
The norm in this case is the principle that Supreme Court justices should maintain some distance from partisan politics. Judges in lower courts are actually bound by formal rules prohibiting them from politics. Supreme Court justices are bound by mere custom. And if you consider the norm completely unimportant, and would feel perfectly comfortable with Supreme Court justices roaming convention floors decked out in elephant or donkey gear, barnstorming the country with their preferred candidates, urging their election in 30-second ads, then Ginsburg has merely brought your ideal closer to fruition. If you place some value on the Judicial branch maintaining its formal independence from electoral politics, she has done serious damage.
Ginsburg’s few defenders on the left have seized upon previous norm violations by the opposing side. Some have brought up Sandra Day O’Connor’s leaked, private expression of dismay when Al Gore took the lead in Florida in 2000, and others Antonin Scalia’s 2003 duck-hunting trip with Dick Cheney. But there is a lot of ground between a world where justices indicate their partisan leanings in private settings and a world in which Republican nominee Ted Cruz is clasping hands on stage in Columbus, Ohio, with Samuel Alito on election night, 2020, and Ginsburg has covered a good deal of it.
The left-wing writer Glenn Greenwald, normally brimming with contempt for mainstream liberalism and the Democratic Party, is inspired by the spectacle of one of its members engaging in radical norm-breaking to mount a rare defense.
Bush v. Gore truly was a historically grotesquely partisan decision. It is not the only, and probably not the worst, case in which the Court’s majority fabricated a legal doctrine in order to superimpose its preferred political outcome on the law. One can go back to the Dred Scott case, or the right-wing activist court of the early 20th century that routinely blocked progressive legislation that offended the Court’s conservative sensibilities, or even, if you believe some critics, Roe v. Wade. The question is whether such rulings should be considered deviations from the Court’s regular practice, or be enshrined as the new ideal. If it is the latter, then there is hardly any pretense that courts serve any function other than a third chamber of Congress, with justices voting on laws just as ideologically as they would in the Senate. In which case, there is no particular reason to find the appointment of a John Roberts to the Court any less objectionable than the appointment of Chief Justice Sean Hannity.
Since over the last several decades, polarization has occurred asymmetrically, the more ideologically disciplined Republican Party has pushed political norms more aggressively. In most cases, they have defended their behavior by citing previous, more modest norm violations. Conservatives have rallied behind the GOP’s unprecedented total blockade of the Court opening caused by Scalia’s death by unconvincingly citing previous scuffles over judicial vacancies, all of which shared some loose resemblance to the current situation without fully matching it. That is how the leapfrogging works — a small violation of the norm by one side is used to justify a much larger subsequent one.
Ginsburg’s champions may think that listing bad things Republicans have done in the field of judicial ethics is a defense of her behavior. In reality, it’s simply a straightforward description of how norms perish.
