Unlike many of her Supreme Court colleagues, Justice Ruth Bader Ginsburg has never been shy about granting news interviews and speaking her mind when she does so. It’s made her the fierce“Notorious RBG” to her young, feminist fans and a scourge to conservatives who say her off-the-bench musings are inappropriate and could be disqualifying in future cases.
“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. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
She recalled a joke her late husband Marty used to make about unfortunate political outcomes: “Now it’s time for us to move to New Zealand.”
Similarly, she told the AP that she assumed Democrat Hillary Clinton — the 83-year-old Ginsburg was nominated to the court in 1993 by President Bill Clinton — would win the November election.
Asked what would happen if 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.”
The Supreme Court has emerged as an important issue in the election — the current ideological balance of four liberals and four conservatives will be broken by the next president.
The court would have a liberal majority for the first time in decades if Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia, is confirmed, and the next president is likely to be able to influence the court’s future as well.
Besides Ginsburg, two other justices will be 78 or older on Inauguration Day 2017. “It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg told the AP, with a smile.
Ginsburg is widely considered the next justice to go, which makes her comments about who might name her replacement even more surprising to many.
“I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh who studies the judiciary. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”
Edward Whelan III, president of the Ethics and Public Policy Center and a former Scalia clerk, has criticized Ginsburg before for her public comments. But he said this one is indefensible.
“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.”
The most immediate consequence of Ginsburg’s comments would be if a case involving the election — a 2016 version of Bush v. Gore — came before the court. But there could also be concerns should Trump be elected.
Louis J. Virelli III 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,” Virelli said.
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.”
There is little precedent for Ginsburg’s frank comments. 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.
It is hardly shocking that the justices would have political favorites. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. worked for Republican administrations in their previous lives. Justice Elena Kagan worked in the Clinton White House, and she was Obama’s solicitor general before he nominated her to the court.
Justice Clarence Thomas’s conservatism is not in doubt, and his wife Virginia endorsed Sen. Ted Cruz in the Republican presidential primary.
Scalia and Ginsburg, though, have always been more outspoken than the others, and a post-term interview with Ginsburg is a go-to for Supreme Court reporters. Sometimes even before the term is ended. In a 2009 interview with USA Today before the case was decided, Ginsburg criticized her male colleagues for failing to appreciate the damage that could be done to a teenage girl during a strip search.
“They have never been a 13-year-old girl,” she said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
And in an interview with The Washington Post in 2013, Ginsburg spoke admiringly of Obama, but said she felt no need to step down in time for him to name her successor.
“I think it’s going to be another Democratic president” after Obama, Ginsburg said at the time. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”