Trump fired back today, telling The New York Times that her comments were “highly inappropriate” and calling for her to apologize to her fellow justices.
“He is a faker,” Ginsburg said of Trump on Monday on CNN. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego ... How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
The 83-year-old justice’s scathing remarks have earned jeers from some legal experts who consider them inappropriate political commentary by a sitting justice and applause from others who see them as an important dose of candor.
In an interview earlier this week, she said a Trump presidency would be unimaginable for the country and the Supreme Court.
“I can’t imagine what this place would be — I can’t imagine what the country would be with Donald Trump as our president,” she told The New York Times. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
She remarked that if Trump wins, her late husband would say, “Now it’s time for us to move to New Zealand.”
The comments by the outspoken member of the court’s liberal wing amplified what she told the Associated Press last week about a potential Trump presidency. “I don’t want to think about that possibility, but if it should be, then everything is up for grabs,” she said.
Trump today decried her comments. “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” he told The New York Times. “I think it’s a disgrace to the court, and I think she should apologize to the court. I couldn’t believe it when I saw it.”
Steven Lubet, a professor at Northwestern University School of Law and an expert on judicial ethics and recusal, said the justice’s comments diminish the neutrality of the court.
“It was definitely inappropriate, uncalled for, and it serves no purpose. It’s not as though voters have been waiting to hear from her,” he said.
Lubet said he did not believe that Ginsburg’s comments would be grounds for recusal should Trump become president and his policies come under judicial review. But it could be grounds for her to recuse herself if Trump’s electoral fate comes before the Supreme Court in a case resembling Bush v. Gore.
The Supreme Court is the only court in the United States that lacks a formal code of conduct, so there is no prohibition on justices’ discussing issues that may come before the court, according to Lubet. But that should not be seen as an invitation for justices to wade into presidential politics, he said.
“The Constitution gives justices life tenure in order to insulate them from politics, not to give them a platform to engage in it,” he said. “So if justices are going to be political players, then we need to rethink life tenure.”
But some constitutional scholars welcomed her remarks as an important contribution the political debate.
Writing on The New York Times’ Room for Debate blog, Erwin Chemerinsky, the dean of the University of California at Irvine School of Law, encouraged such candor from sitting justices.
“I think it is valuable for people to hear what the justices have to say on important issues,” he wrote. “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. We are in a relatively new era of public statements by justices, and I applaud it.”