The Volokh Conspiracy
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Last week, I noted comments Justice Ruth Bader Ginsburg gave to Mark Sherman of the Associated Press about the pending election and its potential influence on the Court. The broader interview was unusually candid for a sitting Supreme Court justice, but it was just a hint of what was to come.
Yesterday, the New York Times published another interview with Justice Ginsburg. The article, by Supreme Court correspondent Adam Liptak, is nothing short of astounding.
In the Liptak interview, Justice Ginsburg reiterates and magnifies her concerns about a Trump presidency, and makes several other comments about cases and issues that are quite uncharacteristic of a sitting Supreme Court justice.
"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 said. "For the country, it could be four years. For the court, it could be - I don't even want to contemplate that."
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
"'Now it's time for us to move to New Zealand,'" Justice Ginsburg said, smiling ruefully.
For the record, I share many of her concerns about Trump, and will not support him for President under any circumstances, but these comments seem quite inappropriate for a sitting member of the federal judiciary.
I clerked on a federal appellate court in an election year, and the judge for which I clerked would not even attend a post-election party due to the appearance such conduct would give (despite having been active in partisan politics before joining the bench). In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments.
Justice Ginsburg's comments on the election were striking, but they were not the only thing remarkable about the interview. She held forth on many issues, including some faced by federal courts.
On U.S. v. Texas, in which the Court deadlocked on the lawfulness of the Obama Administration's immigration reforms, she said:
"Think what would have happened had Justice Scalia remained with us," she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.
Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. "By the time it gets back here, there will be nine justices," she said.
She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice's writingssuggested that he might have found the argument attractive.
"That would have been hard for me," Justice Ginsburg said, "because I've been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do" in other cases.
Justice Ginsburg also identified Citizens United as the one case she'd like to see overturned. She also said Heller was a "very bad decision." As originally posted, the story reported that Justice Ginsburg added "that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law." For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has now been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.