If Donald Trump wins the presidential election, Supreme Court Justice Ruth Bader Ginsburg is clear: She’s out.
"Time for us to move to New Zealand," Ginsburg told the New York Times’s Adam Liptak in a story published Sunday, a joking remark she said she borrowed from her late husband. A Trump presidency, she went on, would be too horrible to contemplate: "I can’t imagine what [the Supreme Court] would be — I can’t imagine what the country would be — with Donald Trump as our president."
That little aside set off a major firestorm.
"This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record," Dan Drezner wrote for the Washington Post. Supreme Court justices, he argued, simply should not take sides in a presidential campaign. Among other things, Ginsburg might have to recuse herself from any cases involving Trump in the future.
Ginsburg later apologized:
JUST IN from Ginsburg:— Robert Barnes (@scotusreporter) July 14, 2016
My comments on Trump were "ill-advised and I regret making them. Judges should avoid commenting on candidates.'
On the one hand, the whole situation can seem like an absurd pretense. Everyone knows there are liberal and conservative justices. If you’re honestly shocked to learn that Ginsburg would prefer Hillary Clinton to Trump, welcome to the world, you beautiful newborn baby.
But that illusion of impartiality has long been crucial to how the Supreme Court operates — and legal observers are unnerved by how it’s starting to crumble. The most flagrant example came early this year, when Trump himself starting openly attacking a federal judge overseeing a Trump University case. Ginsburg’s quotes aren’t anywhere near that bad — but they do raise questions about how long the Court can stay apolitical in an increasingly polarized world.
Ginsburg has made legal ethicists uncomfortable with her criticisms of Trump
Ginsburg’s remarks to Liptak weren’t the only time she’s criticized Trump. In another recent interview with the Associated Press, she said this about a possible Trump victory: "I don't want to think about that possibility, but if it should be, then everything is up for grabs." And on Monday, Ginsburg told CNN’s Joan Biskupic that Trump was "a faker" with "no consistency about him. He says whatever comes into his head at the moment. He really has an ego."
So this wasn’t a slip of the tongue. Ginsburg has now commented multiple times and in increasingly harsh terms about her view of a potential Trump presidency.
If Ginsburg were a lower court judge, she’d be in big trouble. The code of conduct for federal judges holds that they should not "publicly endorse or oppose a candidate for public office."
But things get murkier with the Supreme Court. Technically, they aren’t required to follow this code of conduct. Instead, as Chief Justice John Roberts explained in his 2011 year-end report, they’re merely expected to maintain an air of political neutrality. Even small tics — like when Justice Samuel Alito did mouthed "not true" during the 2010 State of the Union when President Obama criticized the Court’s decision in Citizens United — are frowned upon.
In theory, there could be concrete consequences to naked partisanship. Ginsburg’s remarks could lead to calls for recusal in future cases involving Trump: "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," Jonathan Adler, a law professor at Case Western Reserve University, wrote for the Volokh Conspiracy.
The catch is that because there’s no binding code of conduct, any recusal decision would ultimately be up to Ginsburg herself. (Similarly, after Justice Antonin Scalia went duck hunting with Vice President Dick Cheney, some ethics experts argued Scalia should have recused himself from a case involving Cheney — though he did not.) That means the Supreme Court has always depended on norms rather than rules to maintain its aura of impartiality. And the big question is what happens when those norms crumble.
The Supreme Court is deeply polarized — but we still pretend it’s not
To many observers, it’s fairly obvious that the Supreme Court is just as polarized as other branches of government. Justices break down into liberal and conservative blocs, with Democratic appointees on the left and Republican appointees on the right. And most everyone could have guessed how Ginsburg felt about Trump even if she’d never said a word.
So why does it matter if this facade starts to crumble? Why shouldn’t Ginsburg simply be forthright about her views?
One potential worry is that it could lead to a world in which judges become nakedly political figures — and lead to a deterioration in the democratic norms that keep the executive branch and the judiciary independent.
We’ve already seen a flagrant example this year, when Donald Trump openly attacked federal judge Gonzalo Curiél, who is presiding over fraud lawsuits against the now-defunct Trump University. As Vox’s Dara Lind wrote, Trump was undermining a longstanding respect for the judicial branch of government:
It's intuitive that it would be bad to elect a president who's willing to disrespect a federal judge because someone in the other party appointed him; who says that the courts are "rigged" because a judge doesn't always rule in his favor; who calls for that judge to recuse himself from a case or be investigated. But it's conservatives who are most directly articulating why it's bad: If the president doesn't respect the judiciary, there's nothing the judiciary can do to make him respect them.
To be clear, there’s a big difference between Ginsburg’s comments, which mostly confirmed something everyone knew anyway, and Trump’s, which broke new ground on how much a potential president was willing to blatantly disrespect the court.
But the worrisome aspect of Ginsburg’s remarks is where it might lead. The more that federal judges start feeling comfortable openly attacking political candidates, the more politicians may feel comfortable attacking judges in turn.