JURIST Contributing Editor William G. Ross of the Cumberland School of Law at Samford University discusses Justice Ruth B. Ginsburg’s open public opinion concerning Trumps’ candidacy for presidency…

Since justices during recent years have been increasingly uninhibited about making extrajudicial comments about a wide range of subjects, it was perhaps only a matter of time before a justice would deliver a barbed opinion about a presidential candidate. It is somewhat surprising, however, that the Justice who crossed over this line was Ruth Bader Ginsburg, who has been a model of dignity and decorum throughout her twenty-three years on the Supreme Court, even though she sometimes has not been shy about making public comments about judicial issues that would have been regarded as indiscreet by the standards of a generation ago.

In an interview published in The New York Times on July 10, Ginsburg declared that,

“I can’t imagine what this place would be—I can’t imagine what the country would be—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.”

Ginsburg also reportedly said that the prospect of a Trump presidency reminded her of what her late husband, Martin D. Ginsburg, might have said: “Now it’s time for us to move to New Zealand.” On the following day, she told CNN that Trump was a “faker” who had “no consistency about him” and “really has an ego.”

Extra-judicial comments by justices about controversial public issues are fraught with danger to the court’s institutional integrity insofar as they feed public perceptions that the court’s decisions are unduly politicized. Justices therefore should speak out about such issues only when they have a unique contribution to make. Ginsburg’s comments were particularly inappropriate because they were so superfluous. Ginsburg said nothing that countless other Americans have not said or thought, and her remarks provided absolutely no insights based upon her perspective as a Justice. The classic example of the manner in which a member of court can provide a useful public service by providing such an insight occurred in 1937, when Chief Justice Charles Evans Hughes publicly demolished President Franklin Roosevelt’s contention that he needed to “pack” the Court with six more Justices [PDF] because the mostly geriatric Justices were having trouble staying abreast of their workload. In a letter to the Senate Judiciary Committee, Hughes explained that the workload of the justices was not burdensome and that an increase in justices could actually decrease the court’s efficiency. Hughes needed to speak out because literally no one in the nation was in a better position to blow the whistle on the speciousness of FDR’s pretext for packing the court with justices who were more amenable to sustaining the constitutionality of the New Deal legislation.

Ginsburg’s comment was also ill-advised because it could provide a predicate for a recusal motion in cases involving the Trump Administration or Trump himself if Trump were elected. Justices often need to rule upon the actions of Presidents—a notable example occurred only last month when the court adjudicated the constitutionality of Obama’s executive order to bar the deportation of millions of persons who are in the United States illegally. It is not clear that Ginsburg’s off-hand comments would necessarily mean that her “impartiality might reasonably be questioned,” as required by the federal judicial recusal statute, 28 U.S.C. sec. 455. Moreover, Ginsburg would not be compelled against her will to withdraw from a case under any circumstances because Justices are judges of their own cases on recusal motions. Any recusal motion, however, distracts busy justices from important tasks, and Ginsburg’s refusal to recuse herself in a case involving a Trump Administration might stoke already widespread smoldering suspicions about the politicization of the court. If she were to recuse herself, the court would lose the assistance of one of its members, which is ironic because Ginsburg seemed to suggest in her interview that the court is disadvantaged at the present time because it lacks nine members. The loss of Ginsburg’s participation in any case would be an especially unfortunate loss because Ginsburg is such a particularly wise, able and seasoned justice.

Even if the public could somehow benefit from knowing Ginsburg’s views about a Trump presidency, her remarks were unnecessary because hardly anyone who knows anything about Ginsburg—and Trump—could imagine that the chances that Ginsburg would support Trump were more than about one in ten thousand. The voting preferences of most justices always have been easy to discern. Throughout the court’s history, most justices have been closely identified with a particular political party before their appointment. Until fifty years ago, many justices were active in partisan politics, often as office-holders, until they ascended the bench. Until the 1970s, some justices were close political advisors and friends of presidents.

It is ironic that justices have increased their public comments at the very time that they have become less actively involved in politics. Since the 1970s, justices have much more often given speeches and interviews, written books and articles, taught law school courses, and participated in seminars. Their increasingly frequent public comments about various public issues have helped to de-mystify the court and have provided it with a more human face that makes its work more comprehensible to non-lawyers. Such knowledge and understanding can help to enhance public respect for the court and also inspire constructive criticism. Comments by justices that seem overtly political or partisan, however, can fuel the public perception that the court is no more than a political institution and that judicial decisions are dictated by—rather than merely influenced—the political predilections of the justices and that judicial decisions may, in some instances, even be overtly partisan.

The perils of extra-judicial speech illustrated some of the other comments that Ginsburg made in the same interview in which she deplored the prospect of a Trump presidency. For example, she seemed to suggest that the Senate has a constitutional duty to vote on President Obama’s nomination of Judge Merrick Garland to serve on the court. Although this comment is much more within the range of propriety than her comment about Trump since it more directly involves the court, there was no apparent need for it because Ginsburg had no fresh or unique insight, but rather merely echoed what numerous constitutional scholars already have said.

Ginsburg also seemed to suggest that the court was short-handed with only eight members, which is a more appropriate remark because it is based upon personal experience, although even this seems superfluous since there is universal understanding that the court functions better with a full complement of nine members. Moreover, this suggestion could be interpreted as a partisan slap at Senate Republicans who are blocking Garland’s nomination.

Ginsburg’s reminder in the interview that presidential elections can have long-term influence on the court was similarly superfluous, albeit more innocuous, since this fact is a truism, and there are plenty of Democrats and Republicans who are already rousing voters with reminders of the election’s likely impact on the court. These reminders will only become louder as the election draws closer.

In other comments during the interview, Ginsburg briefly explained some of her thoughts about the deportation case and the Court’s decision striking down two of Texas’s restrictions on abortion clinics. Although justices generally should refrain from explaining their decisions since they have ample opportunity to explain themselves in their official decisions, and because extra-judicial comment can blur the meaning of such decisions, Ginsburg’s comments about these decisions were innocuous. Similarly harmless was her expression of hope that the court would overturn its controversial campaign finance decision, Citizens United, and District of Columbia v. Heller, recognizing an individual right to own firearms. Since she dissented in both cases, her views already were well known. Although her comments were therefore superfluous, they do not seem likely to feed fears that the court is unduly partisan.

Perhaps Ginsburg’s most appropriate extra-judicial remark in the interview was her praise for Chief Justice John Roberts during the court’s most recent term: “He had a hard job. I think he did it quite well.” Here, Ginsburg made a genuine contribution to public discourse by disclosing an opinion based upon close personal observation. A more critical comment would have been more questionable since Justices generally should try to refrain from public discussions of intra-Court discord. Airing dirty judicial linen is likely only to exacerbate such tensions and interfere with the court’s work.

A candid and honest person, Ginsburg is a natural educator and she has strived successfully as a justice to make the court more accessible to the mass of Americans. In any extra-judicial comments, however, justices must take care to avoid even the appearance of partisanship. Ginsburg’s comments breached that barrier. Although Ginsburg’s remarks probably did no serious harm to the Court’s prestige, they should serve as a warning to justices to be more discreet in their public pronouncements, particularly in unguarded and unrehearsed interviews.

William G. Ross is a JURIST 2016 Contributing Editor for the US Supreme Court. He is also the Lucille Stewart Beeson Professor of Law at Cumberland School of Law at Samford University in Birmingham. His publications include studies of extra-judicial speech and the relationship between public opinion and the work of the Supreme Court in constitutional history.

Suggested citation: William G. Ross, Ginsburg’s Remarks About Trump are Part of a Trend Toward Inappropriate Extra-Judicial Speech , JURIST – Academic Commentary, July 13, 2016, http://jurist.org/academic/2016/07/william-ross-ginsburg-speech-.php.