Donald Trump fired back, holding, “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly… I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.” He then tweeted that she had disgraced the Court and should resign because her “mind is shot.”
Apart from the semantic problem of Ginsburg and other members of the Supreme Court being justices and not judges, it is perfectly fair for Trump to be upset. He is not the only one who has expressed outrage or at minimum dismay over Justice Ginsburg voicing loudly and clearly her opinion on the 2016 presidential election.
I am not convinced that it was wise for her to have made those comments, but the response seems to me to be overblown given that it does not present any legal conflicts of interest (nor does it reveal any preferences that we did not already know to be underlying, as Ginsburg has been one of the staunch liberals on the Court since her appointment by President Clinton), and absent a problem with the law, the objections are theoretical and not practical problems.
While we sometimes like to think of the Supreme Court as the legal rather than political branch, we often find in practice that it is difficult to divorce law and politics: two equally intelligent legal scholars can see very different things in the Commerce Clause, the implications of which impact whether we have civil rights protections, just as they can reach different interpretations of whether affirmative action constitutes discrimination (a word left undefined in the Civil Rights Act of 1964), and in seeking new jurists, politicians are far from apolitical even when purportedly focusing on the law. There are, in these actors nominated by the president and confirmed by the Senate, inherent issues of politics that we just don't always seen as transparently as in these recent comments.
People have ideas as to the normative desirability of the Supreme Court (and courts more generally) being comprised of dedicated judges who are being neutral arbiters amid complex legal challenges, in contrast with the obviously politicized legislative and executive branches. Indeed, Chief Justice John Roberts characterized his own job as that of a neutral umpire calling balls and strikes, rather than pitching or batting, which is not to say that that comment did not result in some measure of challenge. The reality, which we have seen in the confirmation hearings (or lack thereof) to fill the late Justice Scalia’s seat, is that the Supreme Court is indeed highly political, a fact in the absence of which the President would not so characteristically nominate judges who are ideological allies and the Senate would not prevent hearings because of political opposition to the sitting president.
The fact of the matter is, Justice Ginsburg here voiced a preference that was hardly surprising. Indeed, the only justice for whom the voicing of a political opinion on Donald Trump would present genuinely new information would be Justice Kennedy (and maybe Chief Justice Roberts, though he is a reliable conservative), and if the issue with Ginsburg’s comments are of the law and the proper role of the Court in the political process, then obviously we would need to hold all of the justices to the same standard. More important is the question of whether these comments compromise her integrity to the law as a Supreme Court justice. I do not believe that they do, with the potential caveat that she might be called upon to recuse herself should Trump be personally a party to a lawsuit before the Court.
The Supreme Court has gotten involved in far more controversial and legally “squishy” issues, from Justice Scalia hunting with then-Vice President Dick Cheney within three weeks of granting cert to Cheney’s appeal pertaining to the Bush Administration’s energy task force, to the notorious Bush v. Gore (2000), about which former Justice O’Connor has since expressed regrets because it it “stirred up the public” and “gave the Court a less than perfect reputation.” Somewhat more superficially, people from both sides of the aisle responded pointedly to Justice Alito’s visible opposition (shaking his head and muttering “Not true, not true”) to comments that President Obama made of the Supreme Court’s Citizens United v. FEC decision during his 2010 State of the Union address, with Senator Hatch characterizing the response as “rude” and Senator Feingold calling it “inappropriate” for Justice Alito have done so. (In fairness, legal and political science scholars were surprised by both the president’s calling out the Supreme Court specifically, as well as Justice Alito’s response to the charges). And of course, the Supreme Court has involved itself in a number of hot-button issues (e.g., abortion, affirmative action, healthcare, immigration) that heighten partisan divisions among the parties. While we like the idea of a more apolitical (relative to the other branches) judiciary, it is not a notion that is well supported in recent years, and the high numbers of 5-4 splits along party lines only reinforce that.
Perhaps there should be a rule (not a legal, but rather simply a more practical and normative rule) that justices should not involve themselves in any way in a presidential campaign outside the strict context of legal challenges brought before them, and for which at least four justices must agree to grant cert. Additionally, unlike the race-based challenge that Trump made with respect to US District Judge Gonzalo Curiel, it may be altogether fair to argue that given personal challenges to Donald Trump (as opposed to voicing a generally liberal ideology in opposition to the preferences that Trump is expressing in his campaign), she might be persuaded to recuse herself in the event that the Court is judging him personally, as opposed to a Trump Administration more broadly defined should he be elected in November. But until that happens, the opposition to Ginsburg seems to be rooted not in the law (she did not break any laws and has not compromised her judicial integrity with respect to any pending cases), but in a rather unrealistic (though perhaps nice) normative desirability that Supreme Court justices stay out of elections and other salient current events. The reality, whether we like it or not, is that we have seen far more egregious involvements by the Court, and what we witnessed was an outspokenly liberal ("notorious RBG") speaking her mind about the election, outside the context of a specific case in which she is acting in her capacity as Supreme Court justice. It may not have been wise for Justice Ginsburg to have made those comments – perhaps she should have risen above it, particularly given her current position on the Court – and it is unclear who “wins” as a consequence of those statements (other than those enjoying a nice Twitter war), but it is not necessarily “wrong” (certainly not from a legal perspective) for her to have done so.