Supreme Court Justice Ruth Bader Ginsburg has been saying unflattering things about Donald Trump over the course of the past week in three different interviews. She called Donald Trump "a faker," criticized him for not releasing his tax returns (and the media for not being hard enough on him about it). She worries for the next four years if he wins the presidency, and shudders for the future of the court. Far away New Zealand is looking like more than a scenic vacation spot if he wins, she seemed to half-joke.
It's no secret that Supreme Court justices have their presidential preferences, but should they be talking about them out loud?
Trump, the subject of Ginsburg's recent volubility, thinks not. In a 1 a.m.tweet, he said "her mind is shot," and he called for her to resign. He told the New York Times what she's said about him is a disgrace to the Supreme Court.
The Washington Post weighed in with an editorial published late Monday afternoon. While the ed board felt that nothing she said about the presumptive GOP nominee was untrue, her comments the Washington Post editorial said, were "much better left unsaid by a member of the Supreme Court."
Federal judges live by a code of conduct that demands they not "publicly endorse or oppose a candidate for public office." While Supreme Court justices are not held to that standard, the Post thinks they probably should be.
"Justice Ginsburg's off-the-cuff remarks about the campaign fall into that limited category of candor that we can't admire, because it's inconsistent with her function in our democratic system," the Post's editorial board wrote.
The New York Times, too, chimed in with its own editorial Tuesday titled "Donald Trump is Right about Justice Ruth Bader Ginsburg," declaring that Ginsburg "needs to drop the political punditry and the name-calling." (It is a rare thing for the Times editorial board to say that Trump is right.)
The Times editorial board pointed out that Trump hasn't exactly been a model on the topic of judicial independence with his series of race-based attacks on the judge in the Trump U case, Judge Gonzalo Curiel, but that "made it only more baffling that Justice Ginsburg would choose to descend toward his level and call her own commitment to impartiality into question."
Both editorials mentioned the 2000 presidential Gore v. Bush decision rendered by the Supreme Court as yet another reason justices should avoid giving voice to their political preferences.
One of the nation's top legal ethicists, New York University's Stephen Gillers, expanded on why justices should keep their politics to themselves, in the op-ed section of the Times.
"Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated," he wrote. "It's not that judges don't disagree among themselves. But disagreements must be over legal principles, not a ruling's effect on a political candidate or party."
And he suggested that the best guidance on the matter came from Chief Justice John Roberts, who, during his confirmation hearing compared judges to umpires. It's their job, he said, "to call balls and strikes and not to pitch or bat."