But because Ginsburg believes in speaking plainly, then let us return the favor: This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record. Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. The closest example I can find is that in January 2004, during an election year, Scalia went on a hunting trip with Vice President Dick Cheney. That action alone got legal ethicists into a lather.
What Ginsburg did was way worse, though. Indeed, I can find no modern instance of a Supreme Court justice being so explicit about an election — and for good reason. . . .
As I noted earlier this year, trust in the Supreme Court was bound to take a hit after the death of Scalia and the partisan deadlock over filling his seat. But if eroding trust was a slow-burning political fire, Ginsburg just poured gasoline on it. There are certain privileges that one sacrifices to be a sitting member of the federal judiciary and making explicitly partisan comments about presidential elections is one of those privileges.
I cannot see any possible defense of what Ginsburg did, given that she violated Canon 5 of the Code of Conduct for United States Judges. Supreme Court Justices are not strictly bound by that code, but they nonetheless act as exemplars for the rest of the judiciary, and this canon seems pretty important. She should repair the damage and apologize for her remarks as soon as possible. Otherwise, she bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.
Trump is a symptom; the responses to Trump reveal the nature of the disease. But this is really a big deal. Right now I’m writing a looking-ahead-to-the-next-term piece for the Cato Supreme Court Review, and although it’s mostly about coming cases, natch, I did mention Ginsburg’s comments. Here’s a bit of what I said:
The comments were injudicious, and though they are unlikely to become relevant in the coming term, should they in fact matter – because of a contested election, with the nation closely divided – her recusal, or worse, her refusal to recuse herself, would undoubtedly have explosive results, both for the nation and for the Court itself, an institution that depends on public regard and that has been growing less popular already in recent years. The comments are an iceberg that most likely will never meet its Titanic, but worth noting here because, should that meeting come to pass, the results would surely be the most significant event of the coming term.
Almost no one, it seems, in our terrible political class has any sense of propriety, or of the fragility of the institutions that they infest.
UPDATE: Link was wrong before. Fixed now. Sorry!