With the Democrats having filed what is the closest we are likely to get to a Clinton v. Trump case before the Court (that’s because I don’t expect the election to go into overtime), I’m wondering the following:
Suppose you are Justice Ginsburg and you think the Sixth Circuit panel really blew it in how it mishandled the Ohio Trump voter intimidation stay request. You would vote to overturn the 6th Circuit and restore the injunction. There aren’t enough other Justices to get your way (maybe you get Justice Sotomayor to go with you), and Supreme Court rules allow you to not publicly announce your dissent from the denial of an injunction or stay.
Do you publicly state your opposition or not? If you speak, you will be criticized for failing to recuse in a case involving Trump. Over the summer J. Ginsburg criticized Trump, repeatedly, and then said she should not have made those remarks. Conservatives said if we ever got a Clinton v. Trump, Ginsburg should recuse. (There’s no mechanism to force her to do so or put it to a Court vote.)
(For my takes on the Ginsburg comments, see The Real Reason Why Judges Should Keep Quiet About Elections, Slate, July 19, 2016 (with Dahlia Lithwick) and Ruth Bader Ginsburg’s Slam of Trump Does the Nation No Favors, Reuters Opinion, July 13, 2016.)
UPDATE: Alex Botomon notes on Twitter that if Justice Ginsburg recuses that would be noted in the order whether or not she dissents. “So announcing dissent may draw attention to the non-recusal. But public would know she didn’t recuse either way.” I think that’s right.