The media are agog over Supreme Court Justice Ruth Bader Ginsburg’s diatribe against Donald Trump. “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 said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” She even half-jokingly suggested that his election would trigger her move to New Zealand. It isn’t surprising that she opposes his candidacy, but saying so publicly and in such strong terms crosses historical boundaries for Supreme Court Justices.
Most federal judges are bound by the Judicial Code of Conduct that says that judges should not “make speeches for a political candidate, or publicly endorse or oppose a candidate for public office” or “engage in any other political activity.” But that rule specifically does not apply to the Supreme Court. However, as far as I can determine, no Supreme Court Justice has ever violated it before. Of course, they are free to express opinions privately, so their views are often informally known.
Justice Antonin Scalia, like Justice Ginsburg, had a reputation for outspokenness. In 2003, he recused himself from a case involving a challenge to the words “under God” in the Pledge of Allegiance, after having publicly criticized a lower-court decision that sided with the challenge. In 2004 however, he declined to recuse himself in a case involving Vice President Dick Cheney, rejecting a request that he should sit out because the two men had gone duck-hunting together. These instances are not quite comparable to Justice Ginsburg’s political outburst, but they show that recusal can become a real possibility whenever impartiality is even slightly at stake.
I believe that Justice Ginsburg went far further than either of these instances and, indeed, that she crossed an ethical line. If Trump is elected, she may have to recuse herself often or bring disrepute upon the Court. This might arise from disputes about the November election or questions concerning executive actions. Remember the Florida ballot in the 2000 contest between Bush and Gore? Who would doubt that Justice Ginsburg might put her thumb on the scales of justice in a comparable situation?
Frankly, I think it possible she would retire in this event even though that would permit Trump to name her replacement. She must know that it is unlikely that she would survive eight years more on the Court anyway. She is 83 and in frail health. She has spoken vigorously about her desire to remain as long as she can be productive, and offering Trump the opportunity to shift the Court to the right would be anathema to her. Still, one can’t ignore reality.
The internet is rife with opinions on this matter. There are the usual rants by the uninformed, but even many legal experts disagree on the question of propriety and on the possible consequences. In general, those supporting her don’t base their arguments on legal or ethical grounds. Rather they seem to believe that Trump represents such an existential threat that no restraints on opposing him are valid or reasonable. That sounds to me like a veiled call for violence. In our current condition of fragile peace and comity, that is very dangerous and I condemn it. Some legal experts base their arguments on First Amendment rights, which they evidently feel outweigh the crucial requirement for judicial impartiality upon which our entire legal system depends. That requirement is sometimes unfulfilled even by the Supreme Court, as some disreputable decisions have shown. But the aspiration toward a blindfolded Lady Justice should always be the goal, and no one has a greater responsibility for this than a Supreme Court Justice.