The lessened standards for justices are largely pragmatic. When lower-court judges recuse themselves, another judge can simply take their place. No mechanism exists for the nine justices on the Supreme Court to do the same. “Even one unnecessary recusal impairs the functioning of the Court,” the justices wrote in a 1993 statement on recusal policy. A series of 4-4 splits in major cases last term after Justice Antonin Scalia’s sudden death shows the limits of an eight-justice court.
That singular role in American society also underscores why Ginsburg’s comments were a mistake. She and her colleagues are not ordinary judges. In the right circumstances, they can reshape vast sections of American society for better or worse. It is also a final bulwark against the violation of constitutional rights. But, as a Founding Father once noted, the justices have “neither force nor will, only judgment.” It falls to Congress and the president to obey and enforce those rulings.
By January, both of those branches could be in control of Trump and his political party. And now, in any hypothetical 5-4 decision in which Ginsburg sides against a Trump administration, he and his cohorts now have evidence of bad faith from the court that keeps them in check. For a president who has already shown little interest in judicial and democratic norms, that’s a dangerous weapon to place in his hands.