It's a political cliche at this point to joke about moving to another country if a certain presidential candidate doesn't win. Gobs of Americans were headed to Canada if George W. Bush was reelected in 2004. A similar contingent threatened to flood across our northern border when Barack Obama was elected and reelected.
Generally, though, you don't hear a Supreme Court justice talking like this. In fact, you generally don't hear a Supreme Court justice talking at all — much less about the big political issues of the day.
Most justices aren't Ruth Bader Ginsburg, though. And in a new New York Times interview, Ginsburg doesn't hold a thing back when it comes to the 2016 election.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” Ginsburg told the Times' Adam Liptak. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
Ginsburg also recalled something her late husband said about such matters: "Now it’s time for us to move to New Zealand."
This appears to be a joke, but Ginsburg's sentiment here is crystal clear: She thinks Donald Trump would be a dangerous president. And in saying it, she goes to a place justices almost never do — and perhaps never have — for some very good reasons.
Ginsburg is known for pushing the bounds of a justice's public comments and has earned something of a cult following on the left. But some say she just went too far.
"I find it baffling actually that she says these things," said Arthur Hellman, a law professor at the University of Pittsburgh. "She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it."
Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn't have said it.
I ❤️ RBG but I don't think our Supreme Court justices should be publicly offering their opinions about POTUS candidates.
— howard wolfson (@howiewolf) July 11, 2016
Has a SCOTUS justice made an endorsement like this before? https://t.co/ARHBNLBuoP
— Jonathan Chait (@jonathanchait) July 11, 2016
Others wondered what impact this might have on Ginsburg's decision to hear cases involving Trump.
2/2 If there's a redo of Bush v. Gore, how does Ginsburg not recuse herself, given her Trump comments?
— Jeff Greenfield (@greenfield64) July 11, 2016
And that's really a key reason justices don't talk like Ginsburg did. Sometimes they have to hear cases involving political issues and people. Having offered their unprompted opinions about such things can lead to questions about prejudice and potential recusal from future cases.
As Greenfield notes, Ginsburg was a part of the court that decided who the president was when the 2000 election was thrown to the Supreme Court, so this isn't uncharted territory. Had she said something similar about either Bush or Al Gore, would she have been able to hear the case?
Louis Virelli is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled "Disqualifying the High Court." He said that "public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don't necessarily think she would be required to do that, and I certainly don't believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments."
Hellman said Ginsburg's comments could muddy the waters when it comes to decisions not just involving Trump but also his policies — something that could come up regularly should he win the presidency.
"It would cast doubt on her impartiality in those decisions," Hellman said. "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."
Ed Whelan, president of the Ethics and Public Policy Center and who once clerked for conservative Justice Antonin Scalia, has criticized Ginsburg before for her public comments. But he said this one is more indefensible than any of its predecessors.
"I think this exceeds the others in terms of her indiscretions," Whelan said. "I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump's at all. But the soundness or unsoundness of her concerns about Donald Trump has no bearing on whether it was proper for her to say what she said."
Rick Hasen, a law professor at the University of California at Irvine, said it's valid to question how Ginsburg might have to handle a potential Trump case — up to and including a Clinton v. Trump case.
"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," Hasen wrote on his blog.
It's not clear that there is any real precedent for what Ginsburg just did.
Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore.
Hellman noted that in 2004, a lower-court judge was forced to apologize for appearing to advocate against Bush's reelection. Guido Calabresi, a judge on the Court of Appeals for the 2nd Circuit, had compared the 2000 Bush v. Gore decision to the elevation of Mussolini in Italy and Hitler.
''The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy,'' Calabresi said. ''That is what happened when Hindenburg put Hitler in.''
Calabresi was formally admonished for his comments, but that's not a possibility with Ginsburg, because Supreme Court justices are not beholden to such rules when it comes to their public comments. Justices are generally more circumspect because of professional pressure and self-discipline — not because there is a written rule that they must be.
But for Ginsburg, it's clear that this has become a calculated risk that she is going to take. The New York Times comments weren't even the only time she has been critical of Trump. In an Associated Press interview published Friday, she also said a Trump presidency is basically unthinkable.
In an interview Thursday in her court office, the 83-year-old justice and leader of the court's liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, "I don't want to think about that possibility, but if it should be, then everything is up for grabs."
That's twice in two interviews — i.e. not a coincidence.
Ginsburg's comments are and will surely continue to be celebrated on the political left. For those concerned about the line between the judiciary and politics, though, they could be the subject of plenty of debate — the kind of debate that could set a precedent of its own.