CREDIT: AP Photo/Cliff Owen. Yeah, the Notorious RBG wasn’t supposed to do that.

In an interview with the New York Times’ Adam Liptak, which was published on Sunday, Justice Ruth Bader Ginsburg offered an unusually explicit view of a current presidential candidate. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” the longserving justice said. She added her views on what a Trump presidency would do to the Court where she sits. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

Then, just in case she hadn’t make her point clear, she told CNN’s Joan Biskupic in an interview published Tuesday that Trump is a “faker” who “really has an ego.”

The unusual suspects responded with predictable outrage, only this time, they had a point. The Code of Conduct for United States Judges, which doesn’t bind Supreme Court justices but is supposed to serve as a guide star, provides that “a judge should not . . . publicly endorse or oppose a candidate for public office.”

It’s not an entirely unprecedented action by a Supreme Court justice. Justice Stephen Field, a uniquely odious jurist who sat on the Court for much of the nineteenth century, actually ran for president without resigning his seat on the bench. More recently, Justice Samuel Alito delivered a politically charged speech to the conservative Federalist Society, where he appeared to label the reelection of President Barack Obama as a “moment of utmost sterility, darkest night, most extreme peril.” But Field and Alito’s incursions into partisan politics do not excuse Ginsburg’s. There are own-goals in politics, and Justice Ginsburg just scored one.

Mr. Trump, for his part, reacted to Ginsburg’s statements with characteristic bluster — calling for her to “get off the court as soon as possible.” It’s a self-serving suggestion, and an extraordinary one. Whatever one may say about the appropriateness of Ginsburg’s comments, they hardly give us any information we didn’t have last week. Is there anyone who thought that Ruth Bader Ginsburg, a liberal icon who is literally the most important feminist attorney in American history, wasn’t appalled by Donald Trump before she expressed these views openly?

Whatever bias Ginsburg may have against Trump or in favor of Democratic candidate Hillary Clinton was baked into the cake long before she decided to express her opinion of Trump openly. She is no more or less likely to treat litigants fairly today than she was last week.

The rule against judges endorsing candidates, in other words, is a rule directed at avoiding the appearance of improper judicial bias rather than one that actually prevents them from reaching biased decisions. A litigant who hears Ginsburg’s comments on Trump or Alito’s remarks to the Federalist Society may come away with the impression that these two judges are casting votes at Supreme Court conferences based on their political preferences, even if both justices are, in fact, fully capable of separating their political views from their roles as jurists. That, in turn, can undermine the prestige of the Supreme Court. In the worst case scenario, it may lead someone disappointed by a correctly decided Supreme Court case to believe that they are free to ignore it.

There is, however, danger on the other side of this equation. That is, there is danger if the judiciary amasses too much prestige, and then wields the perception that it is above politics to reach misguided, deeply politicized decisions. Indeed, as I argue in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, this state of affairs — when the justices wielded unearned prestige to impose a damaging political vision on the nation — was the norm for most of the Court’s history.

For a picture of the worst case scenario, an era when the justices abandoned much pretext that they were bound by a written constitution and instead wrote a deeply ideological vision into the law, consider the early twentieth century. This was, of course, the Jim Crow era in the South, when a uniquely American version of apartheid flourished because of Supreme Court decisions like Plessy v. Ferguson. It was also an era when the justices outright ignored explicit constitutional protections such as the First Amendment’s free speech guarantees. “When a nation is at war,” the Court held in a unanimous opinion holding that speech criticizing the military draft could be criminalized, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Yet, even as the Court ignored explicit constitutional rights, it invented doubtful new doctrines to strike down laws benefiting low-status workers. The Court struck down federal child labor laws, blocked minimum wage legislation, and stripped workers of their right to organize. And it did so by inventing doctrines with little basis in the Constitution’s text, and then by manipulating those doctrines to achieve desired outcomes when lawmakers found a way around them.

A just society, in other words, must thread a difficult needle. Its judiciary must possess enough prestige that it can enforce legitimate legal constraints on bad actors. At the same time, however, it must be vigilant against a too-powerful judiciary that is so removed from public accountability that it repeats the lawlessness of the early twentieth century.

Which brings us back to the question of how we should react to overly political statements by justices like Ginsburg’s or Alito’s. As explained above, the function of a rule against judges making such statements is to increase the perception that the Court is not political without necessarily making the Court any less political. It’s a rule that restrains good judges from undermining their legitimate authority, but it also helps maintain an illusion that bad judges are behaving apolitically.

Striking the right balance between a disrespected judiciary and a too-powerful judiciary is not easy, and it is far from clear which extreme we should be more afraid of in the near future. Until recently, however, there was good reason to fear the later more than the former.

Just a few years ago, the Supreme Court came one vote away from repealing President Obama’s principal legislative accomplishment — based on a legal theory that was wholly incompatible with a 2005 opinion authored by conservative Justice Antonin Scalia. Another pending case asked the justices to strip health insurance from millions of people, sentence thousands of them to die, and to throw many of the nation’s health markets into chaos. It was rooted in the unique legal theory that much of the text of the Affordable Care Act doesn’t count.

Though six justices turned away this attempt to gut Obamacare by any means necessary, three justices dissented — again resting upon legal reasoning that was wholly incompatible with Justice Scalia’s past writings. It was a worrying sign that, at least for these three justices — Scalia, Alito and Justice Clarence Thomas — the law could be cynically manipulated to achieve political ends.

Meanwhile, the nation’s leading conservative legal minds were devising aggressive new plans for what they would do if these three justices ever became five. Some talked openly about reviving the same legal doctrines that were used to dismantle workplace regulation a century ago. Others envisioned a nation where, through a mix of gerrymandering, voter suppression, and strict limits on the executive’s ability to act without permission from a Republican-controlled House, Democrats would be permanently locked out of federal policymaking.

With the death of Justice Scalia, these plans are now in limbo, unable to move forward without a fifth vote. But they could easily come to fruition if more justices like Alito join the Supreme Court. As Ginsburg herself notes, the next president could fill as many as four seats.

And then there’s another factor, which may explain why Ginsburg chose to speak out against this particular presidential candidate. As attorney Greg Lipper notes in his own commentary on Ginsburg’s remarks,

 

 

Trump, as Mark Joseph Stern notes, is more than just a candidate that Ginsburg disagrees with. He is “a racist, misogynistic, xenophobic bigot” who has “proposed banning Muslims from entering the United States; called Mexican immigrants rapists and criminals; supported the deportation of 11 million undocumented immigrants; routinely treated women with sexist disdain; advocated for torture of suspected terrorists; and generally dismissed the rule of law.” If Trump adds four new justices to the Supreme Court, a retrograde plan to gut federal labor laws may be the least of the nation’s problems.

In other words, if the outcome that Ginsburg “can’t imagine” becomes a reality, we are likely to find ourselves thrust into a world where the Court, dominated by Trump appointees and the three dissenters in King, becomes a lasting threat to the rule of law. And the individual justices who present that threat will all have lifetime tenure.

Justice Ginsburg’s intemperate remarks undoubtedly undermine the prestige of the judiciary. If the outcome she fears becomes a reality, however, we may all be very happy to see its legitimacy diminished.