I do have some theories, though.
“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “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.”…
“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president… ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”
For once, I’m on Team Trump:
“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.”
That’s one theory — that she’s already planning to get off the Court as soon as possible. Four days ago, anticipating her “RBG Uncensored” knocks on Trump this past weekend, Ginsburg told a reporter from the AP that the next president, “whoever she will be,” will likely have multiple Supreme Court vacancies to fill. That was a hint that she’s on her way out and that she thinks Hillary has this in the bag. She may feel so confident about Clinton’s chances and so sure about her own impending retirement that she’s lost her inhibitions about signaling bias against the other party’s nominee, suspecting that she’ll never have to rule on an initiative of President Trump’s.
But what if she’s wrong? Even Trump skeptics typically put his chances of winning no lower than 20 percent.
Another theory: Ginsburg’s status as an ass-kicking ideological warrior among progressive intellectuals has gone to her head and she can’t resist grandstanding despite knowing that it’s inappropriate. Skim the Code of Conduct for United States Judges or the ABA’s Model Code of Judicial Conduct and you’ll find passages shooing judges away from political endorsements lest they undermine public confidence in the judiciary’s impartiality. See, for instance, Canon 5(A)(2) of the CCUSJ or Rule 4.1(A)(3) of the MCJC. Ginsburg’s shots at Trump are a de facto endorsement of the idea that you should vote for someone else. Another justice might think twice about that but the “Notorious RGB” has a fan base to please. And those fans are never happier than when she does her DGAF routine in support of some liberal received wisdom. She’s telling it like it is, as always, whatever the ethics of her job say to the contrary.
The obvious response to all that is that there’s no mystery as to how she or the other lockstep liberals on the Court would vote on Trump’s initiatives, just as there’s no mystery as to how Thomas or Alito would vote on Hillary’s. (Kennedy and, to a lesser extent, Roberts are wild cards, of course.) That’s the third theory — Ginsburg’s simply tired of faking impartiality when no one believes the Court is impartial anymore anyway. Why not be plain about your biases if your biases are already plain to see? Why not let Ginsburg campaign with Hillary in the interests of transparency? That’s the best argument in her defense, I think — that we won’t lose much if we drop the unconvincing “Great and Powerful Oz” nonsense that surrounds the Court and free them to act like the political actors they truly are. But we’ll lose something. I can’t imagine how the public’s already weak confidence in American institutions will be improved by seeing Supreme Court justices turn into cut-rate partisan hacks bantering about the election like they’re on “Hardball” after a few drinks. Keeping your mouth shut about elections is a small ask in return for a lifetime appointment to the world’s most powerful Court. Still too big for the Notorious RBG, though.