Justice Ginsburg's Damage to the Supreme Court

That approach is not mere window-dressing. Judicial silence is the tribute that the imperative to appear impartial pays to reality.

Some people will read this and snort: The justices are political animals like all the others; they decide based on their political views, not on the law.

This dismissiveness ignores and obscures the distinction between ideology and partisanship. Broadly speaking, Republicans and Democrats have differing conceptions of the role of the judiciary, the meaning of the Constitution, and the proper approach to its interpretation; it is no surprise, and no tragedy, that judges appointed by Republican presidents tend toward one set of reasonably predictable conclusions and those named by Democratic presidents another.

But there are, or should be, limits to this linkage. Ruling on the reflexive basis of partisanship is different from a decision guided by ideology. That is one reason the court's 2000 decision in Bush v. Gore was so disturbing. The five-justice conservative majority adopted a one-time-only expansive reading of the Equal Protection Clause that conflicted with their usual narrow interpretation. This was a liberal jurisprudential approach in cynical service of a conservative political outcome: handing the election to George W. Bush.

In this context, Ginsburg's remarks -- like Scalia's duck-hunting -- present a problem, and not just for her. They drag the court down to the level of other political actors, into the partisan muck. They reinforce the public's perception that this game, too, is rigged -- more than it actually is. Evidence of its independence: this term's surprise rulings upholding affirmative action and abortion rights.

Judges aren't the neutral umpires, mechanically calling balls and strikes, of Chief Justice John Roberts' imagining. But they can aspire to that ideal, and should -- on and off the bench.

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Ruth Marcus' email address is ruthmarcus@washpost.com.