Justice Ginsburg takes selfless actions to prevent election litigation deadlock

|The Volokh Conspiracy |

Justice Ruth Bader Ginsburg. (Mike Groll/Associated Press)

Justice Ruth Bader Ginsburg, a.k.a the Notorious RBG, has been on something of a tear of late. Beginning with interviews last week, and continuing with today's reported interview with Joan Biskupic, Ginsburg has been unsparing in her criticisms of presumptive GOP presidential nominee Donald Trump. (And Trump, as expected, has responded in kind.)

As others have noted too, Ginsburg's comments have been quite unusual for a sitting justice, and she continues to shoot from the hip with each additional opportunity. Although I largely agree with Ginsburg's assessment of Trump, it is surprising to hear such things from a sitting Supreme Court justice. What can explain her comments? I have an idea.

Given the extreme partisanship and deep divisions within the country, I suspect Ginsburg recognized the potential harm that a Bush v. Gore-style election contest could produce. Worse, with a court split 4-4, any election litigation to reach the high court could be deadlocked. That would be a mess—a mess Ginsburg would like to avoid.

So, to spare the country the potential consequences of a split decision in any potential Trump v. Clinton election litigation, Ginsburg has taken decisive action to ensure that she would be under an obligation to recuse herself from any case that involves Trump's political fortunes (or, for that matter, private fortunes, as there's plenty of litigation concerning that already). Thus, by repeatedly making disparaging comments about the presumptive Republican nominee, Ginsburg has ensured that only seven justices will be able to hear Trump-related cases, thereby ensuring there will be no tie votes in any such case. In so acting, she has performed a valuable public service for which we should all be grateful.