I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues and even pending matters before the Court. I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. I have called this trend the “rise of the celebrity justice.” Now, Justice Ginsburg has started another firestorm over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Canon 5 of the judicial ethical rules expressly states that judges shall not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” The problem is that the Court has long maintained that ethical codes are not enforceable against its members as opposed to every other jurist in the country. This absurd position has continued because Congress has failed to act, something that I have previously criticized. Ginsburg’s statements this week reflects the continued sense of impunity enjoyed by justices who violate the core maxim that “no man shall be the judge of his own case.” The justices are the judges of their own ethical cases and they show vividly why that is a dangerous and corrupting power.
Ginsburg left no question as to her opposition to Donald Trump. She stated “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.” She then added a reference to something that her husband, Martin D. Ginsburg, said: “‘Now it’s time for us to move to New Zealand.”
The sense of impunity reflected in Ginsburg interview was equally evident in her criticism of the GOP for failing to act on President Obama’s nominee to the Court and her defense of Obama’s right to get things done in his final year. She also clearly endorsed the qualification of nominee Judge Merrick B. Garland.
In my view it was a thoughtless and unethical exchange for any jurist. It undermined the integrity of the Court and demonstrates the lunacy of a Court that maintains that justices must be their own judges of ethical misconduct. In the past, justices have dismissed ethical rules like they are pesky matters for lesser jurists. Various justices have ruled in cases where they have clear financial interests. Justices also speak publicly on matters before the Court — thrilling ideological groups. Others have been accused of reporting violations. Others have appeared at political fundraisers. Many justices have embraced the celebrity status by appearing before a type of ideological base where they throw red meat to ecstatic liberal or conservative groups. This includes speaking on issues before or coming to the Court. It has to end. Congress has to act.
I have long favored the tradition model of jurists like former Justice John Paul Stevens who spoke primarily through his opinions and avoided public speeches of this kind. That should be the price of the ticket to be a member of this Court. If you want to be a celebrity, other professional opportunities can be easily pursued. If you want to be one of nine, you should speak through your opinions.
So the answer to the question above is that Ginsburg did violate the principle underlying Canon Five but it doesn’t matter. For just nine jurists, judicial ethics remains a purely advisory set of rules that are often honored in the breach.