In an interview published by the New York Times, Ruth Bader Ginsburg, the US supreme court justice, became the first justice in decades to publicly provide her opinion of a potential president in the midst of the campaign when she told Adam Liptak: “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 then added that her late husband would have seen Trump’s election as a reason to emigrate.
“‘Now it’s time for us to move to New Zealand,’” she suggested her husband would have said after a Trump win.
Ginsburg’s comments ignited the inevitable firestorm, with some commentators – particularly on the right – already suggesting that the justice ought to recuse herself if the November election results in another Bush v Gore-like case before the court. Frequent Ginsburg critic Ed Whelan, who once clerked for the now deceased justice Antonin Scalia and now runs the conservative Ethics and Public Policy Center, told the Washington Post: “I think this exceeds the others in terms of her indiscretions.”
Even Dahlia Lithwick, the senior legal correspondent at Slate, expressed surprise that Ginsburg would weigh in on a Trump presidency in 2016.
“With an election pending? Wow,” she told the Guardian.
But Scott Lemieux, a political science professor and Guardian US Opinion contributor, said her comments were essentially unsurprising to everyone except for the fact that she stated them publicly. “Did anybody think she’d be a Trump supporter?” he asked rhetorically of the liberal-leaning justice.
“I don’t think we need to pretend that judges are apolitical for them to be effective,” he added.
Still, with all the uproar, the question remains what, if any, practical implications there are for Ginsburg’s statements – indiscreet or not, and surprising or not?
Lithwick noted ethics rules that bind other US judges don’t apply to supreme court judges – so it would be up to Ginsburg to recuse herself. “The justices are arbiters of their own recusals,” she said.
The Northwestern University law professor Steve Lubet said: “There would definitely be calls for her recusal in a rerun of Bush v Gore,” if the court were once again called upon to decide the results of a presidential election. But he added: “Under current supreme court practice, the decision would be solely her own, with no appeal or other recourse.”
And as Lemieux said: “I’m sure she would say, ‘Who I’d vote for has no bearing on my decision in a legal case’ ... She wouldn’t recuse herself and she’d be right not to.”
He added: “Did anyone think that Antonin Scalia didn’t care if George W Bush or Al Gore was elected president? We know Sandra Day O’Connor did,” though her comments came at a private party on election night in 2000. Both justices ruled in favor of Bush on both questions put before the court, in effect granting Bush his win in Florida and thus the presidency.
“If no supreme court justice is allowed to have a political opinion, then no one should have ruled on Bush v Gore,” said Lemieux.
And there are other, more obvious precedents for politically active judges in recent history: Lubet pointed out that, in the late 60s, “Justice Fortas served as a political adviser to [then president] Lyndon B Johnson,” though since then the justices have “avoided overt political entanglements”.
Lubet also noted that, in the past 100 years, judges have been more politically active than Fortas, let alone Ginsburg or Scalia. “Salmon P Chase and Charles Evans Hughes both sought the presidency – the latter resigned from the court to accept the Republican nomination in 1916, and was reappointed to the court [as chief justice] in 1930,” he said. “William O Douglas was said to have sought the vice-presidential nomination in 1944,” he added. “Another contender was former US supreme court justice James Byrnes.”
