Supreme Court Justice Ruth Bader Ginsburg has been making headlines for some remarks that she recently made about Donald Trump. On a recent episode of All Things Legal, Craig Ashton and Ed Schade discussed the controversy and the potential legal consequences that her comments could have in the case of a contested election.
The next president is going to have the power to fundamentally change the Supreme Court.
Craig led off by summarizing the current state of the Supreme Court, and how it will be affected by the upcoming election: “Essentially, one of the issues with this election which is very important, is Ruth Bader Ginsburg’s 83, Justice Kennedy is , and then Breyer’s also close to 80. So there’s three justices that… in the next few years are probably going to retire. So the next president is going to have an opportunity to make a huge difference in regards to what direction the law goes going forward, which could have a generational impact… in terms of whether or not Roe v. Wade properly interpreted the Constitution in regards to due process, and how that applies to a woman’s right to choose reproductive [options], going to immigration, going to our dealings with other countries, etc. Commerce clause issues… it’s going to be pretty big. And all these things are happening with new technology…
“The next president is going to be able to appoint probably one to four] justices. Right now it’s 4-4, with Kennedy being the swing vote, and who tends to go more liberal when it comes to social issues.”
Ginsburg’s remarks have set off a great deal of political backlash.
Craig then segued into Ginsburg’s comments: “So, the reason that’s important is Ruth Bader Ginsburg is in the news. She is not a big Trump fan, and she said, quote, about Trump, ‘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 then goes on to say, ‘For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that. Now it’s time for us to move to New Zealand.’”
While comments similar to Ginsburg’s have been made in the past by many people—suggesting they would move to Canada when Bush was elected or if Obama was elected—the concern here is the source of the comments, and the critical role she plays in the government. As Craig put it, “I mean, [comments like Ginsburg’s have] been said, but not by someone on the Supreme Court.”
Ginsburg’s comments have prompted a great deal of backlash, some of it from sources that might seem unlikely. Craig continued: “There are individuals that were top aides—[such as] Howard Wolfson for Hillary Clinton [and] Michael Bloomberg—who basically are critical of Ginsburg. These are ultimately liberal minded individuals. And then obviously on the right side of the spectrum, Ed Whelan, who’s a former clerk for Justice Antonin Scalia, he basically just said, in his terms, that her comments exceed [those made by] others in terms of her indiscretions: ‘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.’”
While it’s unusual for Supreme Court justices to comment on elections, such controversies have occurred before.
Ed Schade agreed with Whelan’s views on Ginsburg’s lack of judgment: “Yeah, I agree. And in that article, it’s kind of interesting, it does bring up that the only things that’s relevantly even close was when apparently Sandra Day O’Connor—first female justice ever, appointed to the court by Ronald Reagan—said, ‘This is terrible,’ when Florida [was] called [for] Al Gore. And it’s kind of weird that a justice would have any type of comment on a presidential election. They should stay out of that.”
Craig: “These are coequal branches, and the judicial branch should stay out of the executive branch in regards to making comments… unless it’s a legal issue before the court. It blurs the lines. It takes away from the impartiality of… the justice system.”
Ed Schade: “Yeah. And the integrity of the entire judicial process, because O’Connor’s sitting on the bench when you had Bush versus Gore, and you have a comment like that and she doesn’t recuse herself, and you’ve got a really really close vote, you’re going, ‘Okay, you already had a preconceived notion who you were going to go for.’ That’s what you want to avoid.”
Would Ginsburg have to recuse herself in the case of Clinton v. Trump?
Craig went on to explain that, just as O’Connor’s comments were troubling in the context of the court case deciding the result of the 2000 presidential election, Ginsburg’s could be similarly problematic if a similar issue arose in this year’s election: “So now if Trump comes up later, if it’s Clinton v. Trump], then now we’ve got Ginsburg making these comments about Trump. I mean, I don’t see how she could move forward and actually decide that case.”
Ed countered: “It’s a recusal issue. But nobody can force her into recusal. It’s interesting because if you’re in a district court or at the appellate level, you have to answer to the Supreme Court. But the Supreme Court only answers to… the Senate with regard to impeachment…”
While the odds are slim that an electoral crisis similar to what occurred in 2000 will happen this year, it is a possibility. And it would probably be wise for all of the Supreme Court justices to bear in mind that they might be called upon to make a decision that will choose our next president.
Everyone has lapses of judgment, and Ginsburg has apologized for her comments. But few are in a position where an ill-advised comment could change the fate of the nation, and the world. Ginsburg is one of those people.