Justice Ruth Bader Ginsburg’s transparency has long been one of her most admirable traits. The U.S. Supreme Court is a particularly opaque institution, and Ginsburg has been a leader in trying to make it less so.
With her repeated public criticisms of presumptive GOP nominee Donald Trump, however, she has gone too far.
Ginsburg might have increased the chances of a constitutional crisis - should we ever be in the unfortunate situation of another Bush v. Gore-style election contest wending its way to the Supreme Court.
On top of this, it’s probably too late for her to do anything about it.
Ginsburg’s commitment to transparency is well known. A few years ago, when I pointed out a small error in an opinion related to the legality of Texas’ voter identification law, Ginsburg not only corrected it but released a statement explaining she had done so. Up to that point, the court made changes to opinions without any public announcement. Which could lead to more than a few surprises. (After criticism, the court has officially changed its policy and now announces changes in its opinions after publication.)
Ginsburg also has been more open than other justices when expressing her opinions about the court and its work. A few years ago, she told Adam Liptak of the "New York Times" that she viewed the conservative majority on the court as activist. When the court was later considering the constitutionality of bans on same-sex marriage, she predicted that if the justices decided to overturn the bans, the public would come to accept it.
She has also repeatedly criticized court opinions from which she dissented. She just did this again with the "Citizens United" decision, which freed corporations, special interests and labor unions to contribute unlimited amounts to support individual candidates.
But this time Ginsburg has done something that appears unprecedented: She has given at least three interviews (to the Associated Press, the "New York Times" and CNN) in which she criticized a presidential candidate in the midst of a presidential election.
She has publicly said that Trump is bad for the country and essentially joked that she would move to New Zealand if he were elected. When given the chance by Joan Biskupic, editor in charge for legal affairs at Reuters and legal analyst for CNN, to back down from her comments, Ginsburg doubled down and called Trump a “faker.”
This led Trump to tweet that the justice is a “disgrace” who should step down. He also spoke with the "New York Times" in his effort to rebuke her.
Some observers, such as my dean, Erwin Chemerinsky, have defended Ginsburg’s right to speak her mind on political issues. Others have stated that Trump is a uniquely dangerous candidate for American democracy -- and desperate times call for desperate measures.
The First Amendment argument misses the point. It is not about what Ginsburg might say, but what the consequences of her speech are for the Supreme Court and for American democracy.
It is certainly possible that litigation involving the Trump campaign will make it to the Supreme Court on an emergency basis before the election. After all, the rates of election-related lawsuits have more than doubled in the period since the disputed 2000 election. Every election since has seen emergency litigation over election rules get to the court.
Indeed, if we are extremely unlucky, we could be involved in a “Clinton v. Trump” post-election litigation, in which the court’s decision could help determine the outcome of the presidential race.
It would be bad enough for the court to have to wade into another election dispute, this time (unlike during "Bush v. Gore") when all the conservatives on the court have been appointed by Republican presidents and all the liberals on the court by Democratic presidents.
It is even worse that the court is divided 4-4 along partisan and ideological lines. This looks likely to continue into the coming term, with the death of Justice Antonin Scalia and the Republican-controlled Senate refusing to consider Judge Merrick Garland to replace him.
A 4-4 tie would leave a lower-court decision, whatever it might be, in place.
In the event that such a case makes it to the Supreme Court, however, there would likely be loud calls from the right for Ginsburg to recuse herself from considering the case. The justices, unlike other judges, are not bound by any formal code of legal ethics, although if they were, making a statement about how an upcoming election should be resolved would be grounds for sanction.
The question is: Given her statements, could Ginsburg’s impartiality reasonably be questioned? It is a question that Ginsburg would be called on to resolve herself.
My bet is that she would not recuse herself in a case involving the Trump campaign, even in a Clinton v. Trump case. For her recusal would move the court from a 4-4 tie to a 4-3 margin for the conservatives.
No doubt, in the heat of the election, people will likely impute partisan motives to the Supreme Court justices who intervene in election-related disputes. But Ginsburg has made things far worse.
Those on the left who are tempted to give Ginsburg a pass on her comments should ask themselves if they would want Justice Samuel Alito to recuse himself in a Clinton v. Trump case if he went on Fox News and said he would move to Britain if Hillary Clinton were elected, or if he called her “Crooked Hillary.”
Ironically, Ginsburg has taken a strong position that states can impose codes of conduct on judicial candidates to stop them from making statements that might raise questions about their impartiality. She has also found due process violations when judges serve on cases in which they have an apparent conflict of interest. What about due process rights here?
The worst part is that this self-inflicted wound was completely avoidable. Even if Ginsburg believes that Trump is a uniquely dangerous candidate for American democracy, plenty of people are making that point. Ginsburg had no need to pile on.
UPDATE: Since publication of this column, Justice Ginsburg has said she regrets her "ill-advised" comments about Trump. "Judges should avoid commenting on a candidate for public office," she said in a statement. "In the future I will be more circumspect.”