Supreme Court justices, like everyone else, become more like themselves as they get older. That’s the real lesson of Ruth Bader Ginsburg’s recent series of partisan observations.
In a series of interviews over the past week, the 83-year-old Ginsburg let loose with several howitzers aimed at Donald Trump. Asked by a reporter from The Associated Press what would happen to the court if Trump could make nominations, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”
In an interview with The New York Times, she said, “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 said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” She joked — it seemed like a joke, anyway — that she might move to New Zealand if Trump were to win.
Ginsburg’s judicial politics are no secret. She became famous as the leading lawyer of the feminist movement in the 1970s; as a litigator, she won some of the biggest women’s rights cases in the Supreme Court. Since her appointment to the court by Bill Clinton, in 1993, she has been its leading liberal — a fierce defender of women’s rights, including abortion rights, and a supporter of affirmative action and the traditional civil rights agenda. Her integrity — like her intelligence and her energy — has been beyond reproach.
But traditionally, there’s been a difference between judicial politics and partisan politics, at least as far as judges are concerned. Like all the justices, Ginsburg is expected to render decisions in line with her judicial ideology, that is, her understanding of how the Constitution should be interpreted. This matter of interpretive style is as much a political judgment as a legal one.
But electoral politics have long been off-limits for sitting judges, including justices. They are expected to refrain from telling us their opinions — in part because they are expected to be above such considerations but also because they rule on cases that have a strong political content. And all presidents have lots of business before the Supreme Court.
The line between judicial politics and partisan politics can seem artificial, and Ginsburg, in her ninth decade, has decided to pretend that the line doesn’t exist. There’s a bracing honesty to this kind of candor, but it’s clear she’s chosen to express herself in a way that justices traditionally have not.
At the practical level, Ginsburg will certainly have to recuse herself if any Bush v. Gore-style lawsuit comes before the court during this election season. She’s made her views too clear about Clinton v. Trump to sit as an impartial judge. (In 2003, Justice Antonin Scalia recused himself in a case challenging the words “under God” in the Pledge of Allegiance because he had expressed support for those words in public speeches.)
More than that, though, Ginsburg’s statements have set a precedent that the court as an institution will want to avoid.
Imagine if all nine justices announced their presidential preferences in the advance of each election. Imagine further that they took sides in primary battles, too. It’s folly to pretend that judges and justices have no political views, or that their legal views are entirely separate from their judicial philosophies. But there is value in at least formal neutrality in these most partisan battles. Any smart lawyer — or smart citizen — can see that. So, in short order, will Ginsburg.