Inside the Stunning Face-Off Between Donald Trump and Supreme Court Justice Ruth Bader Ginsburg

Whether she crossed the line depends on where you draw it.

July 13, 2016, 12:54 PM

— -- In a stunning move for a sitting Supreme Court member, Justice Ruth Bader Ginsburg waded into presidential punditry by hurling several blistering attacks at Donald Trump in recent on-the-record interviews.

Ginsburg, 83, the leader of the court’s liberal wing, called the presumptive Republican presidential nominee “a faker” with zero consistency and an outsize ego, described a Trump presidency as unthinkable and even suggested that she’ll move to New Zealand if he wins in November.

Here’s what you need to know about Ginsburg’s remarks, the reaction by Trump and other leaders and what the law does (and doesn’t) say about Supreme Court justices’ playing politics.

What’s the Latest?

Trump launched a counterattack overnight, tweeting, “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!”

He told The New York Times on Tuesday that she should apologize to her fellow justices for “highly inappropriate” comments that disgraced the court.

House Speaker Paul Ryan also weighed in Tuesday night, calling Ginsburg’s comments about Trump “out of place” for a judge.

“That shows bias to me,” he said during a CNN town hall. “For someone on the Supreme Court who is going to be calling balls and strikes in the future based upon what the next president and Congress does, that strikes me as inherently biased and out of the realm.”

The editorial boards of The Washington Post and The New York Times rebuked Ginsburg in editorials today, with the Post calling her remarks inappropriate and the Times writing that she should drop the name-calling.

Is This Unprecedented?

Yes, this kind of controversial political participation by a sitting justice is unprecedented in recent memory.

You’d need to go back about 50 years to find something resembling a historical parallel, according to one legal scholar.

Steven Lubet, a professor at Northwestern University School of Law and an expert on judicial ethics, cited Justice Abe Fortas’ role as a political adviser to President Lyndon Johnson while sitting on the court.

Lubet cited earlier noteworthy examples of justices’ entering the political realm, including Justice Charles Evans Hughes’ decision to seek the Republican nomination for the presidency, resigning from the court only after securing the nomination in 1916. And Justice Salmon P. Chase remained on the court while he sought the Democratic nomination to run against Ulysses S. Grant in 1872.

Did She Cross the Line?

That depends on how you define “the line.” The Supreme Court is the only court in the United States that lacks a code of conduct, so there is no formal prohibition on justices’ discussing issues that may come before the court, Lubet said.

So while no law imposes a penalty for political speech by sitting justices, he argued that Ginsburg’s comments diminish the neutrality of the court — an important feature of an independent judiciary.

But at least one other scholar applauds her breaching of the tradition that justices avoid discussing politics. “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,” Erwin Chemerinsky, the dean of the University of California at Irvine School of Law, wrote Tuesday on The New York Times’ Room for Debate blog.

“We are in a relatively new era of public statements by justices, and I applaud it.”

Would This Be Grounds for Recusal?

Possibly. While Ginsburg’s comments would not affect her ability to decide a case involving a policy concerning a President Trump, her remarks could be grounds for recusal if his electoral fate came before the Supreme Court in a case resembling Bush v. Gore, Lubet said.

Ultimately, however, any recusal would be decided by Ginsburg herself. Even though federal law requires federal judges, including Supreme Court justices, to recuse themselves from “any proceeding in which his impartiality might reasonably be questioned,” the Supreme Court has decided to let justices determine their own recusals.

Whether the court of public opinion would agree with allowing Ginsburg to cast a deciding vote on who becomes the next president is another question.

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