Canadian Lawyer

16 S E P T E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m Donald Trump responded that Gins- burg's behaviour was "a disgrace to the court" and tweeted: "Her mind is shot — resign!" The New York Times editorial- ized: "Justice Ruth Bader Ginsburg needs to drop the political punditry and name- calling. . . . Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit." Justice Ginsburg finally apologized in a written statement: "Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect." Most of the commentariat was pre- dictably critical of Ginsburg's attack on Trump. New York University law profes- sor Stephen Gillers said, "Why do we keep judges out of politics? To protect the rule of law." Daniel Drezner, a professor at Fletcher School of Law and Diplomacy at Tufts University, wrote in the Washing- ton Post that Ginsburg's pronouncements were "remarkably stupid and egregious." But comments like these are disin- genuous. Does any one really believe that SCOTUS judges and presidential politics are worlds separate and apart? For one thing, history tells us different. In 1800, so many Supreme Court jus- tices were out on the stump campaigning for John Adams that the opening of the court term had to be postponed. Wil- liam Howard Taft, president from1909 to 1913, moved over to become chief justice in 1921. In 1916, Justice Charles Evan Hughes resigned from the court to run for president against Woodrow Wilson (for three days he was both the presumptive Republican presidential nominee and a sitting Supreme Court jus- tice). Hughes went back to the court and became chief justice in 1930. Earl Warren sought the presidency twice and was on Thomas Dewey's 1948 losing ticket as the vice-presidential candidate, all before he became chief justice in 1953. Justice t's no secret that Chief Justice Beverley McLachlin and former prime minister Stephen Harper aren't exactly the best of friends. Suppose that during the 2015 federal election campaign, the chief justice had urged Canadians to vote for Justin Trudeau. Inconceivable, you say. Such a thing would never happen, and if it did, a constitutional crisis leading to the chief 's resignation would inevitably follow. Or would it? Take a look at the recent Ruth Bader Ginsburg/Donald Trump punch-up south of the border. In a July interview with New York Times reporter Adam Liptak, in her U.S. Supreme Court chambers, Ginsburg said, "I can't imagine what this place would be — I can't imagine what the country would be — with Donald Trump as our president." What seemed to bother Ginsburg most was the prospect of President Trump appointing three or more new justices (Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78). A few days after the New York Times exchange, in a CNN interview, Ginsburg doubled down and called Trump a "faker" who "says whatever comes into his head at the moment. He really has an ego." T O P C O U RT TA L E S O P I N I O N @philipslayton I DUSHAN MILIC Political judges It is often taken as self-evident that judges should butt out of politics, but is that really a good idea? By Philip Slayton MAYBE CHIEF JUSTICE MCLACHLIN AND THE OTHER JUSTICES OF THE SUPREME COURT OF CANADA SHOULD SPEAK OUT ABOUT POLITICAL QUESTIONS…

• Cover