Supreme Court Justice Ruth Bader Ginsburg hasn’t been shy in recent days about the prospect of a Donald Trump presidency, joking that she might move to New Zealand if it ever happens.
“I can’t imagine what this place would be ― I can’t imagine what the country would be ― with Donald Trump as our president,” Ginsburg told The New York Times in an article published Sunday. “For the country, it could be four years. For the court, it could be ― I don’t even want to contemplate that.”
That tracks a comment she made in a separate interview with The Associated Press, when the justice stopped short of noting she’d rather have presumptive Democratic presidential nominee Hillary Clinton making future appointments to the Supreme Court.
“I don’t want to think about that possibility,” Ginsburg said when asked to consider Trump in the role of appointer-in-chief.
Now a number of legal academics and Supreme Court observers are raising questions about the propriety of Ginsburg’s candor and what it might mean for the court’s integrity ― with some suggesting she might have to recuse herself from considering any Trump-related case that reaches the high court.
“The other justices should hold an intervention, and tell her to be quiet or step down,” wrote Josh Blackman, a Houston College of Law professor who frequently writes about the high court. “This isn’t funny anymore.” He added that Ginsburg’s comments are “beyond the pale.”
Rick Hasen, another avid court watcher who specializes in election law, wrote that Ginsburg’s statements could very well lead a “reasonable person” to question her impartiality in a future politically charged case.
“I think this is ultimately a question for judicial ethicists, but I do think following these comments it is a legitimate question to raise, should Donald Trump’s campaign come to the Court with any legal questions before the election,” he wrote in his widely read Election Law Blog.
Dmitry Bam, a professor at the University of Maine School of Law who has written on judicial recusals and ethics, said “there is little question that she has crossed a line.”
“For a court that cares a great deal about appearances, this certainly creates the appearance that justices take sides in elections,” Bam wrote in an email. “And if Trump v. Clinton arises in the fall, I would say that there is at the very least an appearance of bias if Justice Ginsburg participates.”
Under federal law, justices must step aside from cases where their “impartiality might reasonably be questioned” ― and they did so in 180 cases during the court’s last term, according to a new analysis by Fix the Court, a group that pushes for structural reform at the Supreme Court.
Fix the Court found that the bulk of recent recusals were due to the justices’ prior work as appellate judges or in government positions. Other recusals were related to stock ownership and family ties to judges or lawyers who participated in earlier stages of the cases.
But recusals for political views or implicit support for certain positions are exceedingly rare, even in the face of a code of judicial conduct that guides federal judges on extra-judicial activities and how to avoid even the appearance of impropriety.
“I’m not aware [that] any justice before has ever commented on the merits or demerits of a presidential candidate.”
Even with that guidance and other self-imposed checks in place, the justices have time and again declined to step aside in cases of high political salience ― most recently in the same-sex marriage cases, where Ginsburg and Justices Elena Kagan and Clarence Thomas all took part despite calls for them to recuse.
But Ginsburg’s Trump comments ― as well as her separate endorsement of Merrick Garland, the president’s stalled choice to fill the Scalia vacancy ― may be unprecedented.
“I’m not aware [that] any justice before has ever commented on the merits or demerits of a presidential candidate,” said Ed Whelan, the president of the Ethics and Public Policy Center and a frequent contributor to the conservative National Review Online, where he has chronicled this episode and what he deems Ginsburg’s “remarkable record of indiscretions.”
“I may very well share her concerns about Donald Trump ... but the ethics concerns don’t depend on the soundness or unsoundness of the candidate,” Whelan added.
But what if this is less a question about ethics and more about wanting our judges to be candid about their positions and biases ― and that the political process itself has done away with the veneer that the high court is entirely apolitical?
“Most people now recognize that judges are heavily influenced by their personal beliefs and experiences,” said Bam, of the Maine School of Law.
“We have watched one party refuse to hold hearings based the politics of the president and his potential nominees. Judges time their retirements to coincide with a certain party being in office. And the 5-4 decision in Bush v. Gore, along partisan lines, also shows the political nature of the court,” Bam said. “So perhaps the pretense that judges are nonpartisan and apolitical does more harm than good.”