First, she said she didn’t want to think about a Donald Trump victory. Then, she suggested moving to New Zealand if he won. On Monday, Supreme Court justice Ruth Bader Ginsburg tackled the presumptive Republican nominee head-on, calling him “a faker” with “no consistency about him.”
Ginsburg’s comments about Trump, some of the sharpest in the race so far, were criticized widely through the weekend for threatening the perceived impartiality of the nation’s highest court. The editorial boards at both the New York Times and Washington Post denounced her comments after they were made, and Trump himself called for her to resign on Tuesday night.
“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump said to 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.”
But no matter what she says, it’s unlikely that Ginsburg will lose the perch that gives her comments such force. Supreme Court justices serve lifetime appointments and “shall hold their Offices during good Behavior,” as enshrined in the U.S. Constitution. The only way to remove a justice forcibly is by impeachment.
Only one justice on the Supreme Court has been impeached in its 227-year history: Samuel Chase in 1805 was charged with trying to influence “politically sensitive cases,” according to the U.S. Senate website. Chase, a voluble jurist, was accused of “refusing to dismiss biased jurors and of excluding or limiting defense witnesses” in the cases but argued in return that he was being targeted for his political beliefs, which stood at odds with the Jeffersonian Republicans who held the majority in Congress.
Chase was ultimately acquitted and served until his death in 1811. Since then, justices have been often threatened with impeachment, but those hearings have never happened.
The greater question, legal experts say, is how her comments reflect on the court, particularly one that directly influenced the 2000 presidential election with its decision in Bush v. Gore and that has become a split political battleground for partisan fights since the death of conservative jurist Antonin Scalia this spring.
University of Pittsburgh law professor Arthur Hellman told the Washington Post that her criticisms of Trump could “cast doubt on her impartiality in those decisions” if a potential Trump administration is involved in future Supreme Court cases. "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."
It’s unclear if Ginsburg would recuse herself if ever called to judge a case involving Trump in the future. But a predecessor on the high bench who also commented on the presidential politics of the day provides an example.
Sandra Day O'Connor, then a Supreme Court justice, was heard at an election night party in 2000 calling the results “terrible” when CBS called Florida for Al Gore, according to Newsweek. After the comments were reported, she was criticized for having still voted when the case over Florida’s contested election results eventually went to the Supreme Court.
She chose to join the majority in that case, which halted ballot recounting in Florida and eventually handed the presidency to George W. Bush.