Justice Ginsburg’s Mistake – The Atlantic

But it’s still stunning that Ginsburg would publicly criticize a presidential candidate during an election campaign. The Constitution grants her and her colleagues lifetime tenure precisely to insulate them from these forces. While the current justices are far from cloistered monastics—nor should they be—they still avoid commenting on electoral politics or specific candidates. If another Supreme Court justice has publicly criticized a political candidate during an election in the past century, I’m not aware of it.

How serious a breach of judicial norms did Justice Ginsburg commit, if any? Bloomberg’s Noah Feldman noted the Constitution doesn’t require justices to be nonpartisan. Even John Marshall, the father of American constitutional law, served as both chief justice and John Adams’s secretary of state at the same time, he pointed out. “As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views,” UC Irvine law professor Erwin Chemerinsky added.

Others are less forgiving. In assessing Ginsburg’s remarks alongside declining trust in American institutions, the Washington Post’s Dan Drezner said if Ginsburg does not apologize for her remarks, she “bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.”

That’s a stretch, to say the least. Trump frequently expresses contempt for basic norms of American democracy, including pluralism and the rule of law. Ginsburg does not. Nor is Ginsburg bound by the federal judges’ code of ethics, as Drezner suggested, which forbids them from supporting or opposing candidates. Chief Justice John Roberts wrote in 2011 that he and the other justices “follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.”

That said, it’s hard to imagine how Ginsburg could justify not recusing herself if the election comes down to a Bush v. Gore-type case. She wouldn’t be the first justice to face ethics questions during an election dispute. Justice Sandra Day O’Connor reportedly said during an election-night dinner party in 2000 that she and her husband would have to wait longer to retire after the networks called Florida for Al Gore. A few weeks later, she cast a fifth vote to end the Florida recounts, effectively deciding the election in George W. Bush’s favor.


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