Writes Paul Butler, one of 3 lawprofs addressing the questions "Can a Supreme Court Justice Denounce a Candidate? Is it ever appropriate or ethical for a justice to announce his or her preference in a presidential election?" — asked by the NYT on the occasion of Justice Ruth Bader Ginsburg's indicating she's horrified at the idea of a Trump presidency.
I addressed the question myself last night, here, and my answer is closest to what Erwin Chemerinsky writes in the NYT. The third essay, by Stephen Gillers, rests heavily on the Code of Judicial Conduct, which doesn't apply to the Supreme Court, but, in Gillers's view, should. He cites the provision that judges should not "make speeches for a political candidate, or publicly endorse or oppose a candidate for public office" or "engage in any other political activity." I wouldn't interpret those provisions too broadly. Judging would collapse if we took "any other political activity" too seriously, since deciding cases is political, depending on what you mean by political. All Ginsburg did was answer a question in an interview. She didn't stage or appear at a political event. And her answer was a modest display of feeling: "I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president... For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that." It's almost a refusal to respond, an oh, my.
But back to Professor Butler with his "normalness" template. I'm watching that. Click my "normal" tag to follow my interest in the idea of normal. These are not normal times, so suspend the normal rules. Who's being not normal? A. The person adjudged non-normal, thus unleashing others from the obligation to be normal or B. the person claiming things are now already non-normal and thus non-normal measures can be used?
And by the way, who's more like Hitler? A or B? I don't like bringing up Hitler, but those other people started it.