No, Sotomayor Should Not Recuse Herself From All Cases Involving The Administration

President Donald Trump has called upon both Supreme Court justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from any cases involving his administration over their past comments. The trigger for this twitter storm is a recent rebuke by Sotomayor of her conservative colleagues where she suggested that they were showing bias in favor the Trump Administration. The statement of Sotomayor, which surprising to many of its directness, is not a basis in my view for such a recusal or disqualification.

The controversy centers on Sotomayor’s dissent in Wolf v. Cook County where the Court lifted an injunction and allowed the Administration to enforce its new “public charge” rule that limits visas for non-citizens entering the country. In her dissent, Sotomayor pointedly wrote “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

Trump blasted the statement on Twitter:

Donald J. Trump✔@realDonaldTrump

“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump.” @IngrahamAngle @FoxNews This is a terrible thing to say. Trying to “shame” some into voting her way? She never criticized Justice Ginsberg when she called me a “faker”. Both should recuse themselves..44.6K11:09 PM – Feb 24, 2020Twitter Ads info and privacy17.1K people are talking about this

There is no basis for such a demand against Sotomayor due to that dissent.

I have repeatedly criticized Ginsburg for her public statements against Trump and his policies as well as her discussion of cases that could come before her on the Court. Fans of the “Notorious RBG” have simply ignored the flagrantly improper character of these remarks. In my view, these comments would be worthy of sanction in the lower courts and arguably recusal on the Supreme Court might be considered in a few cases. These matters are left to the justices who are notorious for dismissing such concerns. However, even with Ginsburg, a blanket disqualification would not be warranted.

While I have been highly critical of public statements by Ginsburg and other justices, including the late Justice Antonin Scalia, the demand by Trump for a blanket disqualification is ridiculous and unhelpful. There is a real issue to be discussed but it is not such stray lines in dissent. It is the increasing practice of justices to speak publicly and thrill what seems like a type of ideological constituency of what I have called “celebrity justices.” (here and here and here).

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