2016 is not a great year for judicial independence and the norms on which it rests. First, Senate Republicans refused to even consider President Obama’s nominee for a vacancy on the U.S. Supreme Court, arguing the next president should choose Justice Antonin Scalia’s replacement. Then Donald Trump, their party’s likely choice to be the next president, made a series of racist attacks last month against federal judge Gonzalo Curiel, who is overseeing two of the Trump University lawsuits.
Compared to those maneuvers, Justice Ruth Bader Ginsburg’s critiques of Trump over the past few days are tame. But they are extraordinary nonetheless. In an AP interview on Thursday, Ginsburg said there could be more vacancies on the Court in the near future. "It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, an apparent reference at presumptive Democratic nominee Hillary Clinton.
Had Ginsburg stopped there, her comment could’ve been seen as a harmless tongue-in-cheek quip. But when asked about a possible Trump victory, she made her views even more explicit. "I don't want to think about that possibility, but if it should be, then everything is up for grabs,” Ginsburg said. She then expanded her criticisms in a series of interviews on Monday and Tuesday.
“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 first told the New York Times. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” In apparent jest, Ginsburg also briefly alluded to moving to New Zealand.
“He is a faker,” she then said in a previously scheduled interview with CNN journalist and Supreme Court biographer Joan Biskupic. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Trump fired back in comments to the Times:
“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Mr. Trump said. “I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.”
He continued: “That she should be saying that? It’s so beneath the court for her to be making statements like that. It only energizes my base even more. And I would hope that she would get off the court as soon as possible.”
The content of Ginsburg’s remarks isn’t particularly explosive. Nor is her disdain for Trump surprising. In many ways, he represents the antithesis of her career. He’s made decades of antiquated comments about women and briefly suggested they should face “some form of punishment” for having abortions. (He quickly recanted that comment, although his views on reproductive rights are far from clear.) By contrast, Ginsburg’s lifelong work on gender equality and women’s rights made her a feminist cultural icon.
But it’s still stunning that Ginsburg would publicly criticize a presidential candidate during an election campaign. The Constitution grants her and her colleagues lifetime tenure precisely to insulate them from these forces. While the current justices are far from cloistered monastics—nor should they be—they still avoid commenting on electoral politics or specific candidates. If another Supreme Court justice has publicly criticized a political candidate during an election in the past century, I’m not aware of it.
How serious a breach of judicial norms did Justice Ginsburg commit, if any? Bloomberg’s Noah Feldman noted the Constitution doesn’t require justices to be nonpartisan. Even John Marshall, the father of American constitutional law, served as both chief justice and John Adams’s secretary of state at the same time, he pointed out. “As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views,” UC Irvine law professor Erwin Chemerinsky added.
Others are less forgiving. In assessing Ginsburg’s remarks alongside declining trust in American institutions, the Washington Post’s Dan Drezner said if Ginsburg does not apologize for her remarks, she “bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.”
That’s a stretch, to say the least. Trump frequently expresses contempt for basic norms of American democracy, including pluralism and the rule of law. Ginsburg does not. Nor is Ginsburg bound by the federal judges’ code of ethics, as Drezner suggested, which forbids them from supporting or opposing candidates. Chief Justice John Roberts wrote in 2011 that he and the other justices “follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.”
That said, it’s hard to imagine how Ginsburg could justify not recusing herself if the election comes down to a Bush v. Gore-type case. She wouldn’t be the first justice to face ethics questions during an election dispute. Justice Sandra Day O’Connor reportedly said during an election-night dinner party in 2000 that she and her husband would have to wait longer to retire after the networks called Florida for Al Gore. A few weeks later, she cast a fifth vote to end the Florida recounts, effectively deciding the election in George W. Bush’s favor.
Ginsburg’s close friend Antonin Scalia also received intense public criticism for his involvement with the political branches. In 2004, Scalia refused to recuse himself from a case involving Vice President Dick Cheney, with whom he had recently gone on a hunting trip. The Sierra Club’s motion for him to step aside led Scalia to publish an unusual 21-page memo defending his decision. “If it is reasonable to think a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined,” he wrote.
Scalia later referred to the memo as his “most heroic opinion—maybe the only heroic opinion I ever issued.” While he eventually sided with Cheney in the case, his vote in the 7-2 decision wasn’t decisive on the outcome.
The lessened standards for justices are largely pragmatic. When lower-court judges recuse themselves, another judge can simply take their place. No mechanism exists for the nine justices on the Supreme Court to do the same. “Even one unnecessary recusal impairs the functioning of the Court,” the justices wrote in a 1993 statement on recusal policy. A series of 4-4 splits in major cases last term after Justice Antonin Scalia’s sudden death shows the limits of an eight-justice court.
That singular role in American society also underscores why Ginsburg’s comments were a mistake. She and her colleagues are not ordinary judges. In the right circumstances, they can reshape vast sections of American society for better or worse. It is also a final bulwark against the violation of constitutional rights. But, as a Founding Father once noted, the justices have “neither force nor will, only judgment.” It falls to Congress and the president to obey and enforce those rulings.
By January, both of those branches could be in control of Trump and his political party. And now, in any hypothetical 5-4 decision in which Ginsburg sides against a Trump administration, he and his cohorts now have evidence of bad faith from the court that keeps them in check. For a would-be president who has already shown little interest in judicial and democratic norms, that’s a dangerous weapon to place in his hands.