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.