Both sides in the presidential race warn that its outcome likely will have a long-term impact on the course of the Supreme Court. But that doesn’t mean a current high court justice should play politics in this election year.
Unfortunately, though, that’s just what Justice Ruth Bader Ginsburg has done in an interview with New York Times Supreme Court correspondent Adam Liptak. Sounding an alarm about the presumptive Republican nominee, Justice Ginsburg 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. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
What Justice Ginsburg should have contemplated was the constitutional separation of powers and her responsibility to neither endorse nor condemn political candidates.
Legal scholars across the ideological range have rightly expressed dismay, even shock, over Justice Ginsburg’s breach of Supreme Court propriety.
Yet this isn’t just a high court case of bad manners. Rick Hasen, a law professor at the University of California at Irvine, raised this practical concern in his blog:
“I think this is ultimately a question for judicial ethicists, but I do think following these comments it is a legitimate question to raise, should Donald Trump’s campaign come to the Court with any legal questions before the election.”
And what about after the election if Mr. Trump wins?
Arthur Hellman, a law professor at the University of Pittsburgh, told The Washington Post that Justice Ginsburg has “cast doubt on her impartiality” in cases involving a Trump administration.
Prof. Hellman explained: “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.”
Yes, many Americans find the prospect of Mr. Trump becoming president troubling, due in part to his unnerving habit of making rash remarks.
But that doesn’t justify a Supreme Court justice making rash remarks of her own about a presidential candidate — and undermining public faith in the objective integrity of the nation’s highest court.