Linda Hirshman is the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.

Three times in the past week, Justice Ruth Bader Ginsburg let the country know she’d prefer that Donald Trump not win the next election. Trump responded that he didn’t much like having her in her job either. “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot—resign!” Trump tweeted. Cooling down a little, he suggested at least she should apologize: “I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump said. “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.”

If what RBG did is a disgrace to the court, she’s in illustrious company. Supreme Court justices have been messing in politics, including campaign politics, since the ink was still wet on the Constitution. In 1800, just a decade after the court was founded, so many of its justices were out campaigning for John Adams that the opening of the court term had to be delayed. Two-hundred and some years later, it’s more taboo than it once was for a justice to openly endorse a particular candidate—but that hasn’t really stopped the country’s top legal officials from taking sides: As recently as election night, 2000, when NBC declared for Democratic candidate Al Gore, Justice Sandra Day O’Connor told the guests at an election party that the Democrat’s election victory was “terrible.” (Of course, her criticism was a little premature, as we now know.) She then went on to participate in making sure nothing so terrible would happen, casting the crucial fifth vote in Bush v. Gore without blinking an eye. O’Connor had a long history of rooting for the Bushes in presidential elections. In 1988, she wrote to longtime political ally Senator Barry Goldwater, in a letter now in his public archives, that she “would be thankful if George B wins. It is vital for the Court and the nation that he does.”


At least Bush v. Gore was not yet before the court when O’Connor shared her preference for the winner with the other election night revelers. Others weren’t so subtle: According to Richard Nixon aide John D. Ehrlichman, one of O’Connor’s chief sponsors for her Supreme Court seat, Chief Justice Warren Burger, discussed legal matters with President Nixon all the time, including the subject of a pending 1970 case in which the government was participating. Burger wasn’t blabbing to his political sponsor about anything really important, though—just one of the most politically explosive issues of the day: school busing.

Burger was hardly the first to frequently step out of the marble palace for the hurly-burly of politics. He actually held his seat as chief justice because the Republicans had created a vacancy by defeating President Lyndon Johnson’s candidate for chief, Associate Justice Abe Fortas, just two years earlier. One of Fortas’ supposed offenses was that he, who had been Johnson’s trusted aide before joining the Supreme Court, continued to advise the president on matters ranging from his child-rearing to his war policy during all the years he sat on the bench. During his hearings, Fortas did not even bother to deny the political role he played. And, although he facetiously contended that the president consulted him only on matters on which Fortas lacked “any expertise,” he could not get the votes for cloture and was not confirmed for chief. Of course, one can argue that it wasn’t really the fact of Fortas’ political activity that was his downfall—it was the nature of it. A new class of Republican legislators had come to Congress in the election of 1968. They wanted to take control of the court, and crying foul play was a good way to do it.

Poor Abe Fortas, how was he to know that his presidential whispering would be used against him? When he came of age during the New Deal, President Franklin D. Roosevelt’s appointees to the Supreme Court were so busy running to the White House to advise the president on every aspect of public policy that then-Chief Justice Harlan Fiske Stone wrote FDR a letter in protest. A justice “exposes himself to attack and indeed invites it,” Stone wrote, “which because of his peculiar situation inevitably impairs his value as a judge and the appropriate influence of his office.” Stone’s letter, though, had no effect—not even on him. Roosevelt stayed so close to his SCOTUS appointee William O. Douglas that he listed him alongside Harry Truman as his preference for vice president in 1944. And Stone himself worked openly with Roosevelt’s successor, President Truman, to get Truman favorite Harold Burton appointed to the court.

Stone’s ineffectual plea was fighting a tradition that had already endured for a century and a half. From Day One, the Supreme Court was up to its judicial collars in electioneering. In the hot election of 1800, the court’s justices were active campaigners: That year, one of the early politicking jurists, Justice Bushrod Washington, wrote an open letter admonishing the Federalists not to split their forces between Charles Pinckney and John Adams, lest they elect “Mr. J___, which God forbid.” Sixty-plus years later, Justice Salmon P. Chase helped President Abraham Lincoln draft the great Fourteenth Amendment, establishing equality under the law. When crusading liberal Louis Brandeis went on the court in 1916, he encouraged his close colleague Felix Frankfurter, then at Harvard Law School, to pursue the various progressive causes Brandeis had to forego. He even paid Frankfurter a bunch of money over the course of more than 20 years to do so. Frankfurter was unanimously confirmed to the court himself in 1939.

Justices haven’t always been open about their political preferences. Washington was forthright, but the Frankfurter money scheme was a little-known fact until 1982, when Bruce Allen Murphy wrote a tell-all book about it. But Ginsburg has neither the time nor the opportunity for subtleties. The beloved “Notorious RBG” now faces what is almost certainly the last election of her tenure, and her entire legacy as a progressive icon depends on the outcome of the coming presidential race and the appointments that will inevitably follow. She’s been saving her political capital for 40 years, to use in ways that other justices have been doing since the founding. And she’s not throwing away her shot.