There is really very little to debate about the ethics of Ginsburg’s comments. They were plainly a violation, the kind of partisan partiality that judicial ethics codes strive to prevent. But Ginsburg, who is a quietly canny judicial and political strategist, surely knows that her comments were an ethical error. That leads to a fascinating question: Why would the justice risk her reputation and good standing—and even her power to hear cases involving Trump—for a few quick jabs at the candidate? The answer, I suspect, is that Ginsburg has decided to sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can. The subtext of Ginsburg’s comments, of her willingness to comment, is that Trump poses an unparalleled threat to this country—a threat so great that she will abandon judicial propriety in order to warn against looming disaster.
To be clear, what Ginsburg is doing right now—pushing her case against Trump through on-the-record interviews—is not just unethical; it’s dangerous. As a general rule, justices should refrain from commenting on politics, period. That dictate applies to 83-year-old internet folk heroes as strictly as it applies to anybody else who dons judicial robes. The independence of our judiciary—and just as critically, its appearance of impartiality—hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other.
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