Supreme Court justices usually refrain from tackling legal hypotheticals, lest they be accused of prejudice when a related actual case comes along. They also rarely discuss electoral politics; as lifetime appointments, they are supposed to remain above such considerations. More importantly, they occasionally have to weigh in on electoral disputes, such as in the 2000 election. To declare preferences ahead of such contingencies undermines their moral status to decide such questions.
That didn’t stop Ruth Bader Ginsburg from shooting her mouth off to the New York Times’ Adam Liptak. If Donald Trump wins the election, says the woman dubbed “Notorious RBG” by her admirers, she suggested that her late husband would have recommended a move to New Zealand:
These days, she is making no secret of what she thinks of a certain presidential candidate.
“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.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
Let’s hash this out for a moment. If the 2016 election ends up being a rerun of the 2000 election, narrowly decided on a disputed outcome in a major state like Florida, would Ginsburg have to recuse herself? It’s one thing, after all, to have people suspect that a Supreme Court justice has a partisan interest in the outcome. It’s quite another to have a justice explicitly declare a partisan interest in the outcome as clearly as Ginsburg did in today’s interview. And there’s no way to interpret that statement about the court under Trump than as a concrete partisan interest in the outcome.
Other legal experts agree that this stepped over the line. Aaron Blake rounds up some reaction at the Washington Post:
Ginsburg is known for pushing the bounds of a justice’s public comments and has earned something of a cult following on the left. But some say she just went too far.
“I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”
Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn’t have said it.
I ❤️ RBG but I don't think our Supreme Court justices should be publicly offering their opinions about POTUS candidates.
— howard wolfson (@howiewolf) July 11, 2016
The problems aren’t limited to an electoral challenge. As Hellman points out further, the Supreme Court routinely takes cases regarding executive-branch policies. Barack Obama’s administration has been an especially good example. What happens when Ginsburg has to consider a challenge to a Trump policy?
“It would cast doubt on her impartiality in those decisions,” Hellman said. “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.”
Perhaps this will give an opportunity for clarity. The Supreme Court in the Ginsburg era has become much more of an activist approval board for policy than it has in protecting the Constitution. From ObamaCare on down, the court’s justices have rationalized themselves around precedent and the law in order to find ways to prop up policies they prefer rather than follow the Constitution. They have become a shadow legislature, made all the worse for their lack of accountability.
Congress and the states need to make a decision about how to respond to this. If the court wants to continue to arrogate this power to itself, then its members should have to face voters on a regular basis, as many states do with their own top courts. We need to impose term limits on justices or else curtail their usurpation of legislative power, but either way a constitutional amendment is in order to bring the judiciary back into a coequal relationship with the other two branches.
In the meantime, we can all encourage Notorious RBG to visit New Zealand soon … and to stay there.