Supreme Court Justice Ruth Bader Ginsburg dipped her toe into the political waters last week, conceding
to the Associated Press that she'd rather not "think about" the possibility of a Donald Trump presidency. "If it should be," she added, "then everything is up for grabs."
A couple of days later, Ginsburg went just a little further while speaking to the New York Times
. Reflecting again on a possible Trump administration, the justice said
, "For the country, it could be four years. For the court, it could be -- I don't even want to contemplate that." Echoing a sentiment from her late husband, Ginsburg said a Trump victory in November would mean "it's time for us to move to New Zealand."
Supreme Court Justice Ruth Bader Ginsburg called Donald Trump "a faker" Monday night, doubling down on her critical comments about a potential Trump presidency. "He has no consistency about him," Ginsburg told CNN. "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."
It's at this point that objective observers have to start wondering whether Ginsburg is going further than she should.
I realize, of course, that justices' ideologies are not exactly a secret. The fact that Ruth Bader Ginsburg wants to see Donald J. Trump lose should surprise literally no one. It's a safe bet that Clarence Thomas is equally eager to see Hillary Clinton lose. There's no great mystery here.
But as much as I admire and respect Ginsburg, critics are raising a legitimate question. If I'm being honest, I probably wouldn't be at all pleased if, say, Samuel Alito started giving a series of media interviews, playing the role of election pundit and intervening in the electoral process. If the question today is whether Ginsburg is breaking with judicial protocol, fairness dictates that the answer is yes.
Paul Butler, a former federal prosecutor and a Georgetown University Law professor, wrote a piece
for the New York Times
defending the progressive justice for speaking her mind.
Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist -- has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no. [...] When despots have ascended to power in other regimes, one wonders how judges should have responded. Should they have adhered to a code of silence while their country went to hell? Not on the watch of the Notorious R.B.G. She understands that if Trump wins, the rule of law is at risk.
I can appreciate the argument. I even want to agree with it. If Trump is a unique threat to the American political system and a genuine menace, it's unreasonable to think people of good conscience should stay silent in the name of propriety.
But Ginsburg isn't just another voter; she's a sitting justice on the Supreme Court. If there were a crisis along the lines of the 2000 election, and the high court was asked to adjudicate a case related to this election's outcome, would Americans have confidence of Ginsburg's impartiality? Would she have to recuse herself, thus affecting the outcome?
I appreciate the broader context and the fact that Ginsburg may be understandably worried about her own role
in sending the nation in a radical and regressive direction. But the fact remains, those who've said she's going too far are raising a legitimate concern that is not easily dismissed.