Ryan Park clerked for Justices Ruth Bader Ginsburg and David Souter during the Supreme Court’s 2013 term and is an associate of the Boies, Schiller & Flexner law firm in Washington. Lori Alvino McGill clerked for Ginsburg during the court’s 2005 term and is a partner of the Wilkinson Walsh + Eskovitz law firm in Washington.
Justice Ruth Bader Ginsburg, for whom we both clerked, has been roundly panned for her comments criticizing Donald Trump, with editorial boards and legal scholars across the country characterizing the justice’s comments as transgressing an ethical “norm” whereby the justices are to speak and act as though they are politically agnostic. Ginsburg herself, upon reflection, agrees that her comments were “ill-advised” and that “judges should avoid commenting on a candidate for public office.” Nonetheless, while consistent with prevailing political norms, the criticism of Ginsburg’s comments overstates the law and ignores much of this nation’s history and constitutional tradition.
First, the suggestion that Ginsburg’s comments violated ethical rules is demonstrably incorrect. The Code of Conduct for United States Judges, by its terms, explicitly does not apply to the Supreme Court. As Chief Justice John G. Roberts Jr. has explained, moreover, while the code is a “source of guidance” for Supreme Court justices, “the application of [its] principles can differ due to the unique circumstances of the Supreme Court.” Nor does the justice’s expression of her personal views on a particular presidential candidate impair her ability to consider fairly any concrete legal issue she might be asked to consider, even one related to the election. In the unlikely event that a Clinton v. Trump election dispute were to come before the court, it would present a discrete legal issue for resolution, not a referendum on whether Trump would be a good president. Ginsburg would not be disqualified to preside over such a case any more than a justice who would prefer to see Trump in the White House, whether or not that view had been publicly expressed.
More broadly, the supposed tradition of justices appearing to be cloistered from the nation’s political life is of relatively recent vintage. Our founders — let alone the political establishment of the 1950s, when Ginsburg attended law school — would be bewildered to learn that Supreme Court justices were expected to refrain from dipping their toes in political waters.
Historical examples of justices plunging headfirst into electoral politics are legion. John Jay, the nation’s first chief justice, twice ran for governor of New York — from his seat on the court. The great John Marshall briefly served simultaneously as chief justice and John Adams’s secretary of state. Charles Evans Hughes resigned his post as a justice to run as the Republican candidate in the 1916 presidential election, and, after losing, was again appointed to the high court in 1930. In 1944, Justice William O. Douglas lost a convention fight to be Franklin Roosevelt’s vice-presidential candidate. Four years later, Douglas turned down Harry Truman’s offer to be his running mate, reputedly because Douglas wanted the top job for himself.
Yet norms have indeed changed, and by prevailing standards of decorum, Ginsburg’s comments were anomalous. But should this anomaly be condemned? The principal virtue of the federal judiciary, which the Supreme Court leads, is its independence. Alexander Hamilton, writing in the Federalist Papers, aptly described judicial independence as “requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves,” and which may “occasion dangerous innovations in the government, and serious oppressions” of minorities. Independence, ensured through life tenure, frees justices to buck popular conventions, even when operating outside their strict judicial role.
Considered through this lens, Ginsburg’s transgression of today’s fickle norms of judicial decorum was significant but not necessarily improper. Ginsburg has served on the court during five previous presidential election cycles without, to our knowledge, making similar public comments. But Trump is not just any presidential candidate. Trump’s disdain for the rule of law and our constitutional system is a central tenet of his political philosophy — underlying, for example, his flagrantly unconstitutional proposal to ban Muslims from entering the country and his calls for loosening libel laws, notwithstanding the First Amendment. Trump’s overt racism and his contempt for the Constitution were on full display as he attacked Judge Gonzalo Curiel — a district court judge presiding over two civil cases involving Trump University — solely based on the judge’s ethnic background.
Speaking only for ourselves, we believe the nation is facing a unique constitutional moment. A major political party will soon choose a presidential nominee whose election — if he governs as he campaigns — could feasibly precipitate a constitutional crisis of a magnitude the 83-year-old justice has not witnessed in her lifetime. We agree that justices should rarely voice their political opinions on a particular candidate or election. But when a justice does decide to speak, we should listen.