It’s a strange week when Donald Trump – known for his provocations and unconventional behavior – lectures a Supreme Court justice on what’s “highly inappropriate,” and many legal experts say he’s right.
Justice Ruth Bader Ginsburg’s unprecedented public criticism of the presumed GOP presidential nominee has left legal experts and her own supporters scratching their heads. No one could recall a similar instance of a justice on the nation’s highest court openly and repeatedly denouncing a candidate running for its highest office.
Trump’s campaign is already exploiting Ginsburg’s attack as the latest example of the high court’s growing politicization. He called upon her to step down and predicted her attacks would only serve to energize his conservative base.
Many legal experts agree Ginsburg’s public comments crossed a long-standing line that has separated the Supreme Court from partisan electoral politics.
“What Justice Ginsburg did in these interviews is facially unethical in my view,” said Jonathan Turley, a law professor at George Washington University. “It undermines the core values and integrity of the court.”
Ronald Rotunda, an expert in legal ethics at Chapman University in Orange, said Ginsburg essentially endorsed the presumed Democratic nominee, Hillary Clinton.
“I found her comments jaw-dropping,” he said. “She is politicizing the court and that is not good for the country or the court. We give them life tenure and salary protection so they will be above the political fray. But she is jumping right into it.”
The White House made light of Ginsburg’s comments Wednesday. “She didn’t earn the nickname the ‘Notorious RBG’ for nothing,” White House Press Secretary Josh Earnest told reporters.
But even the editorial page of the New York Times and some liberal legal scholars chastised Ginsburg for her remarks.
In three interviews in the last week, Ginsburg said she despaired at the prospect that Trump could be president. “I don’t want to think about that possibility,” she told the Associated Press. She joked to the New York Times that she may want to move to New Zealand.
“He’s a faker. He has no consistency about him. He says whatever comes into his head at the moment,” she told CNN. “He really has an ego...How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Exactly why Ginsburg weighed in on Trump is now the subject of debate among legal scholars and political insiders, but she’s shown no signs of backing down.
Some have suggested Ginsburg’s age – she is 83—may play a role. Past justices, including the late Antonin Scalia, became more outspoken as they grew older.
“Her mind is shot – resign!” Trump tweeted Tuesday.
Others pointed to the unusual nature of Trump’s candidacy.
“I don’t think she is losing it mentally. Her opinions reveal close and complex legal reasoning,” said New York University law professor Stephen Gillers. “I think the answer is simple. She is as deeply alarmed as many others over the prospect of a Trump presidency and the consequences to the country and the court. She thinks the voters may be falling under the spell of a charlatan and is willing to accept the criticism for speaking rather than remain silent.”
He noted Ginsburg first made her mark in the law fighting for women’s rights in the late 1960s, when legal precedents were not on her side. “She’s been a fighter and that’s what she’s doing now,” he said. “There are some things she is unable to accept.”
A few pointed to the phenomenon of “celebrity justices” who travel the country appearing before ideologically friendly audiences.
“This can have a corrupting influence on jurists who are treated like rock stars and receive an outpouring of adoration,” said Turley of George Washington.
Though Ginsburg’s comments were the most blatant in recent memory, she is not the first justice to be accused of taking sides.
On election night in 2000 when the votes were being counted, Justice Sandra Day O’Connor was overheard at a party saying it was “terrible” when Democratic nominee Al Gore briefly pulled ahead.
Scalia raised eyebrows in 2004 by going duck hunting with then-Vice President Dick Cheney shortly after the court agreed to decide a case challenging Cheney’s handling of an energy policy task force. And Justice Samuel A. Alito Jr. was criticized by some for shaking his head and mouthing “not true” when President Obama criticized the Citizens United decision during his 2010 State of the Union address.
Within the court, the justices are divided on how they handle their public roles. Justice Sonia Sotomayor, like Ginsburg, often appears before liberal and progressive legal groups, such as the American Constitution Society. On the right, Justices Clarence Thomas and Alito regularly speak before the conservative Federalist Society, as did Scalia.
Notably absent from those meetings are Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Elena Kagan. They tend to speak at law schools or other forums that do not have a political or ideological leaning.
Caroline Fredrickson, president of ACS, said the flap over Ginsburg’s comments should prompt a “serious conversation about a code of conduct” for the Supreme Court. While lower courts are bound by a code of conduct and can be reprimanded for violating it, the Supreme Court justices decide for themselves how to conduct themselves.
In 2004, 2nd Circuit Judge Guido Calabresi, a former Yale Law School dean, came under investigation and issued an apology for an off-the-cuff comment before a legal group that President George W. Bush “came to power” through a court decision, adding that Hitler and Mussolini also came to power without winning an election.
But Supreme Court justices are allowed to monitor their own behavior, including deciding when to recuse themselves from a case.
It’s not clear whether Ginsburg’s comment would raise questions about her ability to fairly handle a future case involving a Trump administration, but many legal experts agree she would come under pressure to recuse herself if there were an election dispute similar to Bush vs. Gore in 2000.
But Ginsburg, then 81, said she was confident she could still do the job well, and she expressed optimism that a Democrat would succeed Obama. However, if Trump were elected, she would turn 84 shortly after his inauguration.
Legal experts note that much turns for Ginsburg in the upcoming election.
“Her legacy depends on who wins the White House,” said UC Irvine law Dean Erwin Chemerinsky, who was among those who had urged her to retire earlier. “If a Democrat wins, there likely will be a liberal majority on the court for years to come…. If a Republican wins, there likely will be a majority to overrule her views on every issue.”
On Twitter: @DavidGSavage
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