Dan Drezner on Ruth Bader Ginsburg’s appallingly inappropriate comments on the election:

[B]ecause Ginsburg believes in speaking plainly, then let us return the favor: This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record. Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. The closest example I can find is that in January 2004, during an election year, Scalia went on a hunting trip with Vice President Dick Cheney. That action alone got legal ethicists into a lather.

What Ginsburg did was way worse, though. Indeed, I can find no modern instance of a Supreme Court justice being so explicit about an election — and for good reason. As the Chicago Tribune noted in an editorial:

To say her public comments are unusual is like saying dancing cows are scarce. Supreme Court justices don’t — at least until now — take public stands on presidential or other elections. One reason is that they are barred from doing so by the federal code of judicial conduct, which states that as a general rule, judges shall not “publicly endorse or publicly oppose another candidate for public office.” They also aren’t allowed to make speeches on behalf of political organizations or give money to candidates. …

Nowhere is that impartiality more important than in the highest court in the land, which has the final word on a host of grave questions. For justices to descend into partisan election campaigns would undermine public faith in their willingness to assess each case strictly on its legal merits. It would also encourage justices to let their political biases affect, if not determine, their decisions.

Indeed. As my Post colleague and Volokh Conspiracy contributor Jonathan Adler writes, “For the record, I share many of her concerns about Trump, and will not support him for President under any circumstances, but these comments seem quite inappropriate for a sitting member of the federal judiciary.”

As I noted earlier this year, trust in the Supreme Court was bound to take a hit after the death of Scalia and the partisan deadlock over filling his seat. But if eroding trust was a slow-burning political fire, Ginsburg just poured gasoline on it. There are certain privileges that one sacrifices to be a sitting member of the federal judiciary and making explicitly partisan comments about presidential elections is one of those privileges.

I cannot see any possible defense of what Ginsburg did, given that she violated Canon 5 of the Code of Conduct for United States Judges. Supreme Court Justices are not strictly bound by that code, but they nonetheless act as exemplars for the rest of the judiciary, and this canon seems pretty important. She should repair the damage and apologize for her remarks as soon as possible. Otherwise, she bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.

I concur completely. The best defense of Ginsburg’s behavior is that she is getting old and forgot herself, which is not exactly a good defense of the capacities of a sitting Justice. More likely, since she still seems pretty sharp to me, Ginsburg has been drawn into the orbit of those who think Trump’s success so far is already adequate evidence of the failure of democracy, and calls for an extraordinary response. But it’s still bizarre that she could think that her comments would be in any way helpful in that endeavor.