This week, Supreme Court Justice Ruth Bader Ginsburg did something shocking: she commented on the presidential election.
In an interview with the New York Times' Adam Liptak, Justice 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." She imagined that her late husband would have said, "now it’s time for us to move to New Zealand."
Trump took to Twitter to respond. "Her mind is shot—resign!"
Why is it important?
If Justice Ginsburg were on a lower court, she would likely have broken a judicial code of conduct. The code for federal judges says they may not "publicly endorse or oppose a candidate for public office."
The code does not apply to Supreme Court Justices. However, Justice Ginsburg's comments upend a canon of judicial ethics and, for some, call into question her commitment to impartiality.
One particular question haunts this debate: if this were 2000 and the election were to be decided by a Supreme Court case, would Justice Ginsburg need to recuse herself? Would that not leave a Court with a conservative majority to decide the election?
Should Justice Ginsburg have commented on the presidential election?
Justice Ginsburg's statements added little to an already loud outcry against Trump. Instead, her comments cast doubt on her impartiality, cost the Supreme Court credibility, and endangered the very foundation of our nation's separation of powers. It wasn't worth it by any measure.
For those who support her point of view, her comments should be seen as not only inappropriate but deeply dangerous to possible future Court cases on Trump. As law professor Jonathan Adler put it, "in the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments."
For those who fall elsewhere on the political spectrum, the Justice's unprecedented political jabs should be seen as undermining the Court's impartiality and fanning the flames of impassioned Trump supporters.
Justice Ginsburg herself understands this. She said, "judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."
An extraordinary situation called for extraordinary measures. Justice Ginsburg used her influence to weigh in on a dangerous election with a candidate who has shown utter disrespect for the judiciary. It was necessary.
Though uncommon, the idea that Justice Ginsburg's comments were unprecedented is simply wrong. In fact, her comments were similar to others made by conservative Justices Alito and Scalia, among others. Justice O'Connor, for example, called Al Gore's presumptive win in 2000 "terrible"—and did not recuse herself from the case that actually followed.
Do we really need to pretend we don't already know each Justice's political point of view? If anything was a mistake, it was the Justice's apology, not her comments themselves.
The Justice has a unique audience of high-level academics and passionate young people, as she is simultaneously one of the foremost legal minds alive and a cult hero online as 'Notorious RBG.' Her unique position mandated her voice be heard.
- The original interview with the Times' Adam Liptak
- "Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach. These days, she is making no secret of what she thinks of a certain presidential candidate."
- The other comments made by Supreme Court Justices
- "[Justice Scalia] also criticized Obama's then-recently announced executive order to exempt young immigrants in the U.S. illegally from deportation, saying the fact that Obama declined to enforce the law "boggles the mind."
- The original 'Notorious RBG' page
- "Asked during Wednesday’s press briefing if the White House thought it appropriate for Ginsburg to be making such comments, Earnest said, ‘she didn’t earn the nickname 'The Notorious RBG’ for nothing.'"
- The New York Times' editorial on the issue
- "Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling."