I have long been a critic of Supreme Court justices embracing the era of what I have called “the celebrity justice.” Justices are increasingly appearing before highly ideological groups and inappropriately discussing thinly veiled political subjects or even pending issues. She previously called President Trump as “faker.” Supreme Court Justice Ruth Bader Ginsburg has been a notable recidivist in this type of conduct and does not appear to be deterred by criticism that she is undermining the integrity of the Court.
I was equally critical of Justice Antonin Scalia for his similar proclivities. This is also a sad statement about Chief Justice John Roberts. Just as I criticized Roberts for failing to take Associate Justice Samuel Alito to task for his highly inappropriate conduct in a prior State of the Union, I believe that it is Roberts’ role to take a stand against these public appearances of justices where they hold forth on contemporary controversies or criticize Congress or a president.
Ginsburg has called Trump “a faker” who “has no consistency about him.” She has said that “I can’t imagine what the country would be with Donald Trump as our president.”
The letter (PDF) raises a valid concern. Ginsburg has shown utter hostility toward President Trump and continued to make improper public comments despite repeated objections about the impact of her conduct on the Court. Yet, the justices insist that they are their own ethical judges and, not surprisingly, they routinely find themselves blameless.
Even if Ginsburg were to consider recusal, she would likely reject the move on three grounds. First, she has not specifically discussed this case or this issue. Second, under the same logic, she would have to recuse herself from any case raising presidential powers. Finally, her obvious disdain for the President does not mean that she would curtail constitutional powers or abandon her objectivity on the questions of constitutional interpretation.
Thus, the members are right. Ginsburg has shown a shocking lack of restraint and judgment in making these comments. If she were a lower court judge, she would be facing a serious judicial ethical complaint. However, she is one of nine and thus supreme in the view of the Court in matters of legal ethics. I have previously argued against this position but Congress has done little to challenge it. So, Ginsburg will hear the case and the ethical objections will be treated as mere suggestions to a court that has shown both total discretion and disdain in past controversies.