Justice Ruth Bader Ginsburg is no fan of Donald Trump and it does not seem that Trump has much love for one of the Court's most high-profile liberals, either. But their feelings have erupted into an unprecedented political feud after Justice Ginsburg announced that she couldn't even fathom a Trump presidency, and joked that she might need to move to New Zealand should he win.
While it's common for presidential candidates to criticize the Supreme Court, it's almost unheard of for a sitting justice to weigh in on the candidates. What would cause Justice Ginsburg to break so dramatically with tradition, ethics, and Supreme Court decorum?
No More Ms. Nice Guy
In interviews last week, Justice Ginsburg didn't hold back when it came to Donald Trump. "I can't imagine what this place would be," she said, referring to the Supreme Court, "with Donald Trump as our president. For the country, it could be four years. For the Court, it could be -- I don't even want to contemplate that."
(Maybe she's not impressed with Trump's list of potential Supreme Court nominees?)
Justice Ginsburg also joked that, if her husband was still alive, he would tell her, "Now it's time for us to move to New Zealand."
A few days later, she doubled down, saying that Trump was a "faker" who "says whatever comes into his head at the moment."
Justice Ginsburg's criticism of Trump is terribly mild by partisan standards, but it's a massive break with Supreme Court decorum -- not to mention judicial ethics, too. By so directly expressing her contempt for Donald Trump, Justice Ginsburg has opened herself up to legitimate claims of impartiality, should she have to rule on cases involving the Donald.
In doing so, her actions reflect poorly on the political and partisan independence of the Supreme Court as a whole.
Few Supporters in Justice Ginsburg's Corner
Justice Ginsburg's comments have been roundly criticized. The conservative press was, unsurprisingly, quick to condemn RBG, though Donald Trump's initial response was almost restrained, for Trump. "I think it's highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly," he said. "It's so beneath the Court for her to be making statements like that."
He's since upped his criticism, however:
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!-- Donald J. Trump (@realDonaldTrump) July 13, 2016
Even liberal mouthpieces disapproved. Just this morning, the New York Times editorial board declared that "Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling."
Why Would Justice Ginsburg Cross That Line?
But Justice Ginsburg is an incredibly intelligent woman and we should assume that she's not engaging in political mud-slinging just because she's tired of biting her tongue. So why would she speak out in such a way?
It could be that Justice Ginsburg thinks there's enough at stake in the current election, enough to justify tarnishing her record and politicizing the Supreme Court. Over on Slate, Mark Joseph Stern posits that "Ginsburg has decided to sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can."
The subtext of Ginsburg's comments, of her willingness to comment, is that Trump poses an unparalleled threat to this country -- a threat so great that she will abandon judicial propriety in order to warn against looming disaster.
Is that worth politicizing herself and the Court? Pretty much everyone but Justice Ginsburg thinks no. If her gamble pays off, and she somehow influences the election against Trump, then she has still set a dangerous precedent by playing electoral politics. Should she fail, she will have crippled her ability to maintain the appearance of impartiality when it comes to cases involving Trump and his administration.