If not now, when should Justice Ginsburg have spoken out on Trump?

Supreme Court Justice Ruth Bader Ginsburg has drawn fire for her comments on Donald Trump.
Supreme Court Justice Ruth Bader Ginsburg has drawn fire for her comments on Donald Trump. The Associated Press

When is the First Amendment not the First Amendment? Apparently, when a liberal U.S. Supreme Court justice exercises it to voice alarm at the possibility that Donald Trump might become the next president.

Justice Ruth Bader Ginsburg is being criticized for remarks on the trash-talking reality TV star who is – some of us can scarcely believe it ourselves – the presumptive nominee of the Republican Party.

“I don’t want to think about that possibility, but if it should be, then everything is up for grabs,” the 83-year-old justice told The Associated Press when asked about a Trump presidency last Thursday.

“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 New York Times quoted her Sunday as saying.

On Monday to CNN, she explained – accurately – that Trump “is a faker” with “an ego” and “no consistency” who “says whatever comes into his head at the moment.”

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump told The Times. He was less polite on Twitter: “Her mind is shot – resign!”

He has had company, even among fans of the liberal justice, from legal scholars to major newspapers such as The Times and The Washington Post. By tradition, justices don’t weigh in, even indirectly, on presidential elections, though there’s no law against it. The code of conduct for federal judges forbids them from publicly opposing or endorsing candidates for public office, but the Supreme Court isn’t bound by formal ethical rules.

Rather, justices avoid the appearance of partisanship because the credibility of the judicial branch depends on the public’s faith that it is independent from the rest of the government, and impartial. The party-line ruling that handed the presidency to George W. Bush in 2000, for instance, tarnished the high court’s image for years.

But Ginsburg’s observations, first off, are hardly the stuff of campaign slogans. Saying that you “can’t imagine” a Trump presidency is like seeing a terrible play and telling the playwright you’ve “never seen anything like it.” And the CNN remarks, while not flattering, are not incorrect, either. Trump does have an ego and does shoot from the hip.

She is surely not the first recent Supreme Court justice to share a political opinion. “I wouldn’t do the job of dogcatcher for Ronald Reagan,” Justice Thurgood Marshall said, according to The New York Times, in an interview two years before his 1991 retirement.

“This is terrible,” Republican Justice Sandra Day O’Connor reportedly exclaimed at an election party after CBS called Florida for the Democrat Al Gore in 2000.

Justice Antonin Scalia, famed for his right-leaning outbursts, used a 2012 dissent in a case about state law to tee off on President Barack Obama. And when Obama criticized the disastrous Citizens United ruling in his 2010 State of the Union address, Justice Samuel Alito essentially called him a liar, shaking his head and mouthing the words, “not true.”

Nor is it clear Ginsburg’s remarks damage the court. If the information age has made anything clear, it’s that institutions are made up of individuals. The Bee’s editorial board, for instance, diverged on Ginsburg’s statements. My colleague Erika Smith worried that, given social media’s swift evolution, Ginsburg was setting a precedent for untold future mischief. My colleague Foon Rhee saw a cost to the court’s credibility that wasn’t worth the benefit, given how few minds would be changed by her comments.

I see in Ginsburg a brilliant jurist who, as an American Jew born in 1933, saw what happens when good people don’t question the rise of a bigoted, authoritarian mindset. I believe she strategically shared her concern because the threat of someone such as Trump taking over the White House is so grave that silence would be the worse option.

If he and his lackeys take power, judicial propriety will be the least of this country’s worries, which is why Ginsburg’s greatest contribution might simply be staying alive and on the bench in case that happens. That said, however, she should be thanked for her candor. If not now, when should a good citizen speak out?