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Ginsburg's right not to remain silent

When Justice Ruth Bader Ginsburg publicly revealed her negative opinion of Donald Trump, I posted the interview on my daughter's Facebook wall with the caption, "she never disappoints." Even before the backlash from liberals and conservatives, however, I had second thoughts: As a Supreme Court justice, did she overstep the boundaries of her role as an impartial arbiter on the highest court in the land?

Surely it's no surprise that Supreme Court justices have political views. This does not mean that their jurisprudence is tailored to their politics. It is the other way around: Their judicial views make them attractive to different politicians. A progressive president is likely to appoint a justice who believes the Constitution is a fluid set of ideals that must be interpreted in light of changing times and emerging issues, whereas a conservative president will probably select someone who views the Constitution as a fixed and immutable document. In either case, justices are supposed to — and generally do — analyze legal questions according to their views of the Constitution.

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The uproar about Justice Ginsburg's comments — calling Mr. Trump a "faker" and joking that her late husband would have suggested moving to New Zealand should Mr. Trump win the presidency — is not really about her ability to apply constitutional analysis. It is about the appearance of impartiality. Sure, she's a justice and appearances matter. But she is also a human being with her own set of morals, and it was Justice Ginsburg the citizen who spoke her mind on Donald Trump. True enough, her view was only important because of her role as a public figure sitting on the highest court. But her opinions were neither legal nor grounded in constitutional interpretation. They reflected her deeply held notions that a Trump presidency is a frightening prospect for which the option to remain silent was not viable.

Generally I abhor comparisons to Hitler. No other leader's fascist, racist or misogynistic ideas have resulted in the systematic murder of 11 million people. No concept of exclusion or oppression (however hateful) is tantamount to the "final solution": the goal of annihilating every man, woman and child with a drop of Jewish blood. But the comparison of Mr. Trump to a young Hitler is not so offensive. Before he was able to implement his ideas as a dictator, Hitler was just a man seeking power by spouting anti-Jewish rhetoric, using scare-tactics to whip up a frenzied mob approach.

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I wonder about people in 1930s Germany who knew that Hitler's virulent anti-Semitism was objectionable but failed to voice their opinions. Diplomats and distinguished citizens attended Nazi-sponsored social events without objection — even when they were uncomfortable with the political views of the hosts. Was everyone silent because it wasn't his or her place, job or role to speak out? Could concerned individuals have prevented Hitler's ascent? Probably not. But the question of when to speak out is not always about one's role or one's likelihood of success in changing the course of history. Instead, a moral human being will ask him or herself: Can I live with myself if I remain silent?

Supreme Court justices should refrain from engaging in public dialogue about impending elections. And as a rule, citizens should obey the law. But once in a while we condone the actions of leaders who break the law to effect moral change — and we call it civil disobedience. We admire Martin Luther King Jr., a spiritual and civil rights leader, who broke the law countless times to create equality in our country.

Ruth Bader Ginsburg did not break the law, nor did she speak out against Mr. Trump because he is anathema to her political views. Surely there were other candidates with whom she strongly disagreed on matters of race, the economy, war and a whole host of other issues. She spoke her mind about Mr. Trump because he espouses hatred, exclusion and superiority over large groups of people. As a Jew who grew up during the atrocities of the Holocaust, as a woman who encountered discrimination, and as a human being who cares about the future of this country, she probably felt it was her moral duty not to remain silent.

Justice Ginsburg spoke as a citizen and apologized as a justice. I believe that history will judge her favorably for her morality in refusing to remain silent and for her willingness to apologize for overstepping judicial boundaries.

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Adina Amith is an attorney who lives in Baltimore City. Her email is adina.amith@verizon.net.

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