Dahlia Lithwick and I have written this piece for Slate. It begins:
Late last week, Supreme Court Justice Ruth Bader Ginsburg tried to put the controversy over her recent criticisms of presumptive Republican presidential nominee Donald Trump behind her, issuing a written statement of regret and telling NPR’s Nina Totenberg: “I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.”
But the issue of judicial speech on political matters is hardly over and done with. It will remain fodder for the 2016 presidential election because Donald Trump criticized Ginsburg, even questioning her mental competence (“her mind is shot”) and calling on her to resign. Many court watchers worry what might happen if the court is called upon to rule on any kind of election dispute and that brings a reprise of calls for her to recuse in any Trump-related litigation. And on top of all that, the court itself will soon decide whether to weigh in on a case challenging an Arizona rule that bars judicial candidates from doing the very thing Justice Ginsburg did: openly supporting or opposing a candidate for public office.
If Justice Ginsburg follows her past judicial writing and not her personal example, she’d likely decide—correctly, we think—that states can stop judicial candidates and judges from endorsing or opposing candidates for office (aside from opponents in their own elections). Even though we all know that judges have political opinions, it is better for their own legitimacy and the integrity of our elections to keep the judicial and political roles separate. If the court votes to allow yet more political speech from sitting judges, we will have a great many more Ginsburggates to look forward to.