But electoral politics have long been off-limits for sitting judges, including justices. They are expected to refrain from telling us their opinions — in part because they are expected to be above such considerations but also because they rule on cases that have a strong political content. And all presidents have lots of business before the Supreme Court.
The line between judicial politics and partisan politics can seem artificial, and Ginsburg, in her ninth decade, has decided to pretend that the line doesn’t exist. There’s a bracing honesty to this kind of candor, but it’s clear she’s chosen to express herself in a way that justices traditionally have not.At the practical level, Ginsburg will certainly have to recuse herself if any Bush v. Gore-style lawsuit comes before the court during this election season. She’s made her views too clear about Clinton v. Trump to sit as an impartial judge. (In 2003, Justice Antonin Scalia recused himself in a case challenging the words “under God” in the Pledge of Allegiance because he had expressed support for those words in public speeches.)
I raised this question yesterday.