There are certain phrases one might never expect to encounter on The New York Times editorial page. Ranking high on the list is this one: “Donald Trump is right.”
Yet, on Wednesday, there it was — and in a headline, no less.
The topic was U.S. Supreme Court Justice Ruth Bader Ginsburg’s contemptible forays into presidential politicking. In three interviews with three separate national media outlets, Justice Ginsburg discussed her feelings about Mr. Trump, the presumptive Republican nominee. (One word: Disdain.)
Mr. Trump responded, saying, “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I couldn’t believe it when I saw it.”
Even the liberal Times editorial board had to agree, writing, “Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.”
The conservative Wall Street Journal editorial board’s position was far more forceful: “All of this raises questions about her judgment, her temperament, and her continuing capacity to serve as a judge. She should resign from the Court before she does the reputation of the judiciary more harm.”
Following criticism from the left, right and center of the U.S. political spectrum, Justice Ginsburg herself admitted she was wrong. She said, “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect.”
In the future, sure. But this bell cannot be un-rung.
We’ll dispense with the peroration on American governance and instead hone in on something that directly impacts the Cayman Islands — the notion that judges are angels, especially anointed to communicate the Truth down to the masses.
Judges, of course, are only human, just like the rest of us. Some are great; many are good; and some have considerable room for improvement.
The U.S. Supreme Court is no different. It is well-known for being a philosophically polarized body, with four sitting justices bearing the label of “conservative” and the other four “liberal.” Where Justice Ginsburg erred is not in holding her beliefs about Mr. Trump, but in vocalizing her prejudices and puncturing the sacristy of judicial impartiality.
When the U.S. media responded with near-universal umbrage, Justice Ginsburg recanted. But would her remorse have surfaced in the absence of public opprobrium?
Perhaps that’s a question that can’t be answered. In Cayman, however, it’s one that could not really be asked, at least not about a sitting local judge.
You see, our Grand Court Law refers to an offense known as “scandalizing the Court,” which is punishable by imprisonment of six months and a fine of $500.
In British law, “scandalizing the Court” refers to publishing material that is likely to undermine public confidence in the courts, and “usually takes the form of scurrilous abuse of the judiciary or imputing to them corruption or improper motives,” according to a 2012 U.K. Law Commission paper on the subject. (The same paper points out there has been no prosecution of this offense in England and Wales since 1931.)
No specific definition exists in Cayman law. Thus, the offense is murky — and the threat of it chilling to the free press. We at the Compass are constantly consulting with our attorneys to avoid breaking this law because we’re not sure what might constitute an offense.
We’re happy to call the chief justice, attorney general, director of public prosecutions, or anyone else in government who can provide official clarification on this part of the law, but we don’t know who to call, or if, when we do call, we’d ever get a practical “before-deadline” answer. We’re certain the judiciary would agree with us that “murky law” is bad law.
The bottom line is, respect can’t be ordered or imposed. It’s earned.
The idea that a special class of individuals, such as judges, have been placed beyond criticism is antithetical to the exercise of free speech in a free society.
Beyond the usual restrictions on libelous or threatening language, etc., our judiciary doesn’t need — nor does it deserve — special rules to insulate its robed members from honest criticism from the democratic public.
P.S. Our lawyer advised us this editorial was “probably safe” to publish.