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 Justice Ruth Bader Ginsburg has decided to take a stand against a major party’s presidential candidate in a way that she—and arguably no prior justice—has ever done before. Over the course of several interviews, the justice has spent the last few days hammering Donald Trump for his reckless campaign and outrageous policies, suggesting that a President Trump would pose a serious danger to the republic. Her explicitly political statements set off a familiar firestorm about whether Ginsburg had “crossed the line,” sending the conservative blogosphere in particular into howling fantods. Critics on the left and right have criticized Ginsburg’s comments as explosive, unprecedented, and unethical. 
 
 Mark Joseph Stern Mark Joseph Stern covers courts and the law for Slate. 
 
 They are. That’s the point. 
 
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 To recap the controversy, Ginsburg’s campaign began with a light jab at Trump in a Thursday interview, in which the justice admitted she didn’t “want to think about” the possibility of a Trump presidency. Then, on Friday, Ginsburg told the New York Times’ Adam Liptak, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.” Days after her Times interview, Ginsburg told CNN’s Joan Biskupic that Trump is a “faker” with “no consistency” and she criticized his refusal to release his tax returns. “He really has an ego,” she said (correctly and understatedly). 
 
 There is really very little to debate about the ethics of Ginsburg’s comments. They were plainly a violation, the kind of partisan partiality that judicial ethics codes strive to prevent. But Ginsburg, who is a quietly canny judicial and political strategist, surely knows that her comments were an ethical error. That leads to a fascinating question: Why would the justice risk her reputation and good standing—and even her power to hear cases involving Trump—for a few quick jabs at the candidate? The answer, I suspect, is that Ginsburg has decided to sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can. The subtext of Ginsburg’s comments, of her willingness to comment, is that Trump poses an unparalleled threat to this country—a threat so great that she will abandon judicial propriety in order to warn against looming disaster. 
 
 To be clear, what Ginsburg is doing right now—pushing her case against Trump through on-the-record interviews—is not just unethical; it’s dangerous. As a general rule, justices should refrain from commenting on politics, period. That dictate applies to 83-year-old internet folk heroes as strictly as it applies to anybody else who dons judicial robes. The independence of our judiciary—and just as critically, its appearance of impartiality—hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other. 
 
 Ginsburg’s comments also set a dark precedent for other justices with equally strong political inclinations. 
 
 You don’t need to be a judicial ethicist to see the wisdom of this principle. Trump is a litigious man; should he take a campaign-related lawsuit to the court, Ginsburg will now surely be pressed to recuse herself. And of course, more significantly, these calls for recusal would accompany every case involving a possible Trump administration. (Through the Department of Justice, the executive branch is tasked with defending federal laws and presidential actions in court.) Moreover, Ginsburg’s comments all but begged Trump to respond—which he did on Tuesday, with a surprisingly coherent rebuke. 
 
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 “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump told the New York Times. “I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it. … It’s so beneath the court for her to be making statements like that. It only energizes my base even more. And I would hope that she would get off the court as soon as possible.” 
 
 This rejoinder transforms the Ginsburg-Trump feud from a one-sided roast to a full-on debate. That is quite alarming, because in the United States, politicians and judges are not supposed to debate. Will Ginsburg respond? If she does, her actions will severely tarnish her legacy; if she doesn’t, she may look craven. Best-case scenario, this feud gives Trump license to drag Ginsburg through the mud and turn her into an election issue; worst-case, it delegitimizes Ginsburg’s judicial authority. And since Ginsburg’s criticisms will change exactly zero minds, the benefits of the debate will flow almost exclusively to Trump. 
 
 Ginsburg’s comments also set a dark precedent for other justices with equally strong political inclinations—in other words, every justice ever to sit on the bench except David Souter. I can’t imagine, for instance, that Notorious RBG–loving liberals would be as pleased to hear Justice Samuel Alito bash Hillary Clinton as they are to hear Ginsburg diss Trump. Had Ginsburg said something similar about Mitt Romney, or John McCain, or George W. Bush, her slights would have been profoundly inappropriate. Here, progressives might point out that Sandra Day O’Connor declared her distaste for Al Gore on election night in 2000. (When Gore appeared to have won Florida, she reportedly said aloud, “This is terrible.”) But her comment that night was neither as deliberate nor as brazen as Ginsburg’s; it was more of a slip than an intentional campaign to impugn her disfavored candidate’s character. 
 
 Given all of these compelling reasons that Ginsburg should have refrained from speaking her mind about Trump, why did she take the risk? It seems clear that Ginsburg has made a very conscious decision to cash in her political capital after years of holding her fire. The justice is 83, and while she remains healthy and sharp, she probably won’t sit on the court for much longer. She won’t be impeached—Supreme Court justices must do much worse to suffer that sorry fate—and she can’t be voted out. In effect, Ginsburg has nothing to lose but her good name. And that, it seems, is what she has decided she is willing to risk if it might potentially rally her admirers against Trump’s looming peril. 
 
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 Romney and McCain had qualities and policies that Ginsburg surely loathed as well. But they always had America’s best interests at heart. That is altogether untrue of the sinister and self-interested Trump. For Ginsburg to treat Trump with the same respect—that is, complete silence—that she afforded previous Republican nominees would acquiesce to the premise that his candidacy is just like theirs. It would suggest that this is an election like any other, a run-of-the-mill election rather than a battle for America’s soul. It would legitimize a fascist. ||||| NOTHING SUPREME Court Justice Ruth Bader Ginsburg has said in recent interviews about the presidential election should surprise anyone familiar with her biography and her career on the court. A lifelong left-of-center lawyer and feminist innovator who was appointed to the high court by President Bill Clinton in 1993, the 83-year-old Justice Ginsburg fits the profile of a Hillary Clinton supporter to a T. Obviously, she would rather have a Democrat appointing her next new colleague, and possibly her replacement. 
 
 Nor were any of Justice Ginsburg’s disparaging comments about the presumptive Republican nominee, Donald Trump, untrue, at least not as we read the evidence. When Justice Ginsburg, elaborating on her previous anti-Trump remarks to the New York Times, told CNN this week that Mr. Trump “has no consistency about him. He says whatever comes into his head at the moment. He really has an ego,” she certainly got no argument from us on the merits. (A brief dissent from the justice on one point, though: She rightly protested that Mr. Trump has not released his tax returns but incorrectly chided “the press” for being “very gentle with him on that.”) 
 
 However valid her comments may have been, though, and however in keeping with her known political bent, they were still much, much better left unsaid by a member of the Supreme Court. There’s a good reason the Code of Conduct for United States Judges flatly states that a “judge should not . . . publicly endorse or oppose a candidate for public office.” Politicization, real or perceived, undermines public faith in the impartiality of the courts. No doubt this restriction requires judges, and justices, to muzzle themselves and, to a certain extent, to pretend they either do or do not think various things that they obviously do or do not believe. As the saying goes, however, “hypocrisy is the compliment vice pays to virtue.” 
 
 As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system. Only 16 years ago, a key issue regarding the outcome of the 2000 presidential election wound up at the Supreme Court, whose decision in favor of Republican nominee George W. Bush, backed by five conservative Republican appointees, was regarded as controversial by many and nakedly partisan by some. Think of how that situation would have played out if one or more of the justices had previously mused about leaving for New Zealand in the event of a victory for either Mr. Bush or his opponent, Democrat Al Gore. 
 
 When the story of Justice Ginsburg’s career is written, there will be many highlights — her pioneering work as a lawyer advocating women’s rights; her many trenchant opinions on the high court in defense of American society’s underdogs. Her performance this week, alas, confirms her fallibility. ||||| The Notorious RGB isn’t backing down from her negative comments about Republican presidential candidate Donald Trump, and now he’s calling for her resignation from the Supreme Court. Here’s a quick rundown of what the two have said. (Jenny Starrs/The Washington Post) 
 
 The Notorious RGB isn’t backing down from her negative comments about Republican presidential candidate Donald Trump, and now he’s calling for her resignation from the Supreme Court. Here’s a quick rundown of what the two have said. (Jenny Starrs/The Washington Post) 
 
 Unlike many of her Supreme Court colleagues, Justice Ruth Bader Ginsburg has never been shy about granting news interviews and speaking her mind when she does so. It’s made her the fierce“Notorious RBG” to her young, feminist fans and a scourge to conservatives who say her off-the-bench musings are inappropriate and could be disqualifying in future cases. 
 
 But she went even further than usual last week in her comments to the Associated Press and The New York Times about presumptive Republican presidential nominee Donald Trump. 
 
 “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” Ginsburg told the Times. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” 
 
 She recalled a joke her late husband Marty used to make about unfortunate political outcomes: “Now it’s time for us to move to New Zealand.” 
 
 Similarly, she told the AP that she assumed Democrat Hillary Clinton — the 83-year-old Ginsburg was nominated to the court in 1993 by President Bill Clinton — would win the November election. 
 
 1 of 14 Full Screen Autoplay Close Skip Ad × These Republicans refuse to vote for Donald Trump View Photos And they’ll tell you why. Caption And they’ll tell you why. Former Secretary of State Colin Powell “General Powell said at a meeting of the Long Island Association that he would be voting for Hillary Clinton,” a spokeswoman confirmed Oct. 25. Powell added in an interview that he picked Clinton “because I think she’s qualified, and the other gentleman is not qualified.” Nikki Kahn/The Washington Post Buy Photo Wait 1 second to continue. 
 
 Asked what would happen if Trump won instead, she said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.” 
 
 The Supreme Court has emerged as an important issue in the election — the current ideological balance of four liberals and four conservatives will be broken by the next president. 
 
 The court would have a liberal majority for the first time in decades if Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia, is confirmed, and the next president is likely to be able to influence the court’s future as well. 
 
 [Meet Merrick Garland, President Obama’s nominee for the Supreme Court] 
 
 Besides Ginsburg, two other justices will be 78 or older on Inauguration Day 2017. “It’s likely that the next president, whoever she will be, will have a few appointments to make,” Ginsburg told the AP, with a smile. 
 
 Ginsburg is widely considered the next justice to go, which makes her comments about who might name her replacement even more surprising to many. 
 
 “I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh who studies the judiciary. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.” 
 
 Supreme Court Justice Ruth Bader Ginsburg takes part in a conference in Saratoga Springs, N.Y., in May. (Mike Groll/Associated Press) 
 
 Edward Whelan III, president of the Ethics and Public Policy Center and a former Scalia clerk, has criticized Ginsburg before for her public comments. But he said this one is indefensible. 
 
 “I think this exceeds the others in terms of her indiscretions,” Whelan said. “I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump’s at all. But the soundness or unsoundness of her concerns about Donald Trump has no bearing on whether it was proper for her to say what she said.” 
 
 The most immediate consequence of Ginsburg’s comments would be if a case involving the election — a 2016 version of Bush v. Gore — came before the court. But there could also be concerns should Trump be elected. 
 
 Louis J. Virelli III is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled “Disqualifying the High Court.” He said that “public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. 
 
 “I don’t necessarily think she would be required to do that, and I certainly don’t believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments,” Virelli said. 
 
 [What made the friendship between Scalia and Ginsburg work] 
 
 Hellman said Ginsburg’s comments could muddy the waters when it comes to decisions not just involving Trump but also his policies — something that could come up regularly should he win the presidency. 
 
 “It would cast doubt on her impartiality in those decisions,” Hellman said. “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.” 
 
 There is little precedent for Ginsburg’s frank comments. Then-Justice Sandra Day O’Connor was criticized by some in 2000 after Newsweek reported her saying, “This is terrible,” at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore. 
 
 It is hardly shocking that the justices would have political favorites. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. worked for Republican administrations in their previous lives. Justice Elena Kagan worked in the Clinton White House, and she was Obama’s solicitor general before he nominated her to the court. 
 
 Justice Clarence Thomas’s conservatism is not in doubt, and his wife Virginia endorsed Sen. Ted Cruz in the Republican presidential primary. 
 
 Scalia and Ginsburg, though, have always been more outspoken than the others, and a post-term interview with Ginsburg is a go-to for Supreme Court reporters. Sometimes even before the term is ended. In a 2009 interview with USA Today before the case was decided, Ginsburg criticized her male colleagues for failing to appreciate the damage that could be done to a teenage girl during a strip search. 
 
 “They have never been a 13-year-old girl,” she said. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” 
 
 And in an interview with The Washington Post in 2013, Ginsburg spoke admiringly of Obama, but said she felt no need to step down in time for him to name her successor. 
 
 “I think it’s going to be another Democratic president” after Obama, Ginsburg said at the time. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”
– Ruth Bader Ginsburg would probably need something harder than a bottle of fine California wine to get her to vote for Donald Trump in November—in fact, she doesn't even want to think about him as president, as she told the AP in an interview last week before piling on the Trump disparagement even further with the New York Times and CNN. The jury is now in on her remarks, and she may want to appeal. Some thoughts from around the internet: Mark Joseph Stern writes for Slate that Ginsburg's comments have been called "explosive, unprecedented, and unethical," by both liberals and conservatives, and he agrees that what she did was "dangerous" as well as a breach of ethics. But he says that's exactly Ginsburg's point, and it may be a strategic one in which she's willing to give up her "good name" and "sacrifice some of her prestige … to send as clear a warning signal about Trump as she possibly can." Ginsburg "abandoned judicial propriety to wrestle in the mud with a candidate she detests," he writes. "It is not pretty, it is not pleasant, and it may not even be that smart. But it may be the one thing the justice can do to help prevent a President Trump." His entire take here. The New York Times editorial board notes that Ginsburg has done nothing illegal—but it's sort of siding with Trump on this one. The paper points out that Antonin Scalia's recent death in an election year makes a new president's possible influence in picking a new justice especially critical. It calls it "baffling" that Ginsburg would stoop to his level and "call her own commitment to impartiality into question," adding that DC already has enough partisan issues "without the spectacle of a Supreme Court justice flinging herself into the mosh pit." The Washington Post adds that not only were Ginsburg's remarks not illegal, they weren't surprising, given her feminist history, nor were they necessarily untrue. But it agrees with the Times that her "off-the-cuff" statements were "inappropriate" and probably best never spoken. "Politicization, real or perceived, undermines public faith in the impartiality of the courts," the editorial board writes, citing the Code of Conduct for United States Judges' section on refraining from political activity. "[Her comments] fall into that limited category of candor that we can't admire, because it's inconsistent with her function in our democratic system." Donald Trump himself addressed Ginsburg's shade with the New York Times on Tuesday, but he added more thoughts on Twitter early Wednesday, tweeting, "Justice Ginsburg of the US Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot—resign!"