These remarks become less cryptic when read alongside the interview she gave to the New York Times in the summer before the election: "I can’t imagine what the country would be—with Donald Trump as our president . . . . For the court, it could be—I don’t even want to contemplate that.”She noted that should the unthinkable come to pass, her late husband would say "Now it's time for us to move to New Zealand."
These remarks come after Trump launched what had previously been a one-sided war of words with the judiciary (although the justices have not lacked defenders, such as the Deans of Harvard and Yale Law). As Trump attempts to torch the remains of the rule of law, Ginsburg's response prompts us to answer the question of whether it warrants fighting fire with fire, or with water.
To the BBC, Ginsburg referred to the press' role in Watergate. It might have been better to consider the judiciary's role. In United States v. Nixon, the Supreme Court ordered Nixon to comply with a court order that would give Congress the evidence it needed to proceed with impeachment. The court rejected Nixon's argument "that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment."
The Justices struggled mightily to craft a unanimous opinion, to avoid any suggestion that the decision was politically motivated. In the end, Justices with views as diverse as William Brennan, Warren Burger, and Thurgood Marshall signed off (thankfully, William Rehnquist was forced to recuse himself, as he had been Nixon's chief legal advisor) on the document that memorializes the court's finest hour.
It's been a long sixteen years since the Supreme Court's lowest ebb of the post-Watergate era -- the decision in Bush v. Gore, a nakedly partisan fiasco. Multiple justices (including the Chief Justice and Sandra Day O'Connor) should have recused themselves, as they had commented publicly that they wanted to retire in the near future --but only under a Republican president (both in fact were succeeded by the nominees of the president whose administration the Bush v. Gore decision secured). Justice Scalia's defence of his failure to recuse himself in Cheney v. United States District Court for the District of Columbia foreshadowed his incredible cynicism in granting the stay of the Florida Supreme Court's decision that stopped the counting of the ballots and set the stage for the Court to hand Bush the presidency.
It is impossible to overstate the damage to the judiciary--and to the rule of law--done by Bush v. Gore. According to Jeffrey Toobin, Justice Souter nearly retired in protest, as "He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore."
As Washington v. Trump wends it way to the Supreme Court, it is evident that the Court would be forced play a critical role in any process leading to impeachment. Like Nixon, however, Trump will attempt to fight a scorched-earth battle with any branch of government that opposes him. He has already indicated how he intends to sideline the judiciary: he plans to label them as nakedly political actors who cloak their ideological biases behind black robes.
It is unclear how Ginsburg's rhetorical support for the press might outweigh the possibility that she would be asked to recuse herself if Trump stands before the Court. What is worse, it is hard to imagine how her public comments could possibly overcome the damage that would be caused by Trump's arguments about the validity of the court's judgments if she does not recuse herself (not one to avoid a catastrophic constitutional crisis, he!)
The op-ed written by the Deans of Harvard and Yale Law defends the judiciary as an essential bulwark of the rule of law owing to its neutral and measured application of non-ideological principles. Ginsburg is clearly not signing from the same hymnbook, and the dissonance is jarring. If the Justices are not even capable of pretending that they are interested in the rule of law (rather than a rule that allows them to select the best man, as in Bush v. Gore), they may lose their audience.