Somewhat overlooked in the news cycle after the atrocity that took place in Nice, France on Thursday was the conclusion of l’affaire Notorious RBG. In case you missed it, Justice Ruth Bader Ginsburg (the only Supreme Court Justice to have her own Twitter hashtag,) took off all of her filters for an interview with the New York Times, launching double-barrelled verbal blasts against Donald Trump, the late Justice Scalia.

That apparently being insufficient, she also communicated that she’d vote to overturn both the Heller and Citizens United decisions, should the opportunity present itself. She even implied she’d consider moving to New Zealand if Trump managed to be elected commander in chief. The rhetoric quickly escalated into a verbal battle with The Donald who called on the intemperate justice to resign, while the injudicious Justice called the former host of NBC’s The Apprentice a “faker“.

The entire kerfuffle became a teachable moment for Justice Ginsburg, who eventually learned that when you wrestle with pigs, not only does the pig enjoy it, you’re the only one who gets dirty. The Justice found herself under withering criticism for her lack of decorum by everyone from the National Review to…well, the editorial board of the same New York Times that published the interview in the first place.

An unsigned editorial was published in the Times on Wednesday titled “Donald Trump is Right About Ruth Bader Ginsburg….” The dust-up came to an apparent conclusion Thursday with Justice Ginsburg apologizing for her comments about the oddly-coiffed real estate tycoon.

That one’s going to leave a mark.

While I confess to experiencing a bit of schadenfreude while watching RBG humble herself a little, I’m more interested in the legal implications of Mrs. Ginsburg’s little tirade. As it turns out, her ill-considered comments might have an impact on future Second Amendment cases.

The Code of Conduct for United States Judges states, in part:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities….

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment….

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not….
(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office….

The official commentary for Canon 2 explains:

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen….

With that in mind, Justice Ginsburg’s comments on Donald Trump were, in my judgment, a violation of the code. Suggesting that the election of a particular Presidential candidate would make you want to move to New Zealand sounds like opposition to that candidate to me — hence Justice Ginsburg’s belated apology.

Quite a few commentators have mentioned that Justice Ginsburg’s parroting of Democratic Party talking points about The Donald means she should recuse herself if a case involving the election comes before the Court, along the lines of Bush v. Gore. But what about her comments on the Heller case and others? Here’s what Justice Ginsburg said to the Times:

“I thought Heller was a very bad decision,” she said, adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.

Should Judge Garland or another Democratic appointee join the court, Justice Ginsburg will find herself in a new position, and the thought seemed to please her.

“It means that I’ll be among five more often than among four,” she said.

(Aside: someone at the Times edited out the above quotation at some point, but then put it back in. If you look at the current version, there’s an extraneous quotation mark, which I removed from the block quotation above. You can see the hack job for yourself here.)

Those comments seriously call into question Justice Ginsburg’s impartiality on future cases relating to the Second Amendment. How could any claimant seeking to a redress grievances against government authorities for a violation of their Second Amendment rights expect a fair hearing before Justice Ginsburg now?

At least one legal mind sharper than mine agrees.

The Wall Street Journal’s Law Blog quotes Professor Ronald Rotunda, a constitutional law and legal ethics scholar: “Justice Ginsburg would ‘probably [have] to disqualify herself in any case seeking to overturn Citizens United and the Second Amendment cases.'”

Professor Steven Gillers, from New York University, however, disagrees:

“I don’t think it is ever a basis for recusal that a judge or justice has repeated publicly a position they have already taken in an opinion they’ve written or in which they joined,” he said. “Scalia often did that.”

Professor Gillers doesn’t provide an example of the late Justice Scalia’s commentary (and Google appears to be failing me in this instance.) And, admittedly, the case for Ginsburg’s recusal might be a tough sell simply because there isn’t an active case on the issue at bar. I will venture the opinion, however, that the context of Justice Ginsburg’s comments — coming on the heels of her stated opposition to the presumptive GOP nominee, in which she was essentially acting as a shill for the Democrats — makes her comments a bit more egregious than anything Scalia said.

For his part, the late Justice Scalia recused himself from the matter of Elk Grove Unified School District v. Newdow in 2004, a case involving the “under God” line in the Pledge of Allegiance. He did so because he had made comments at a private event criticizing a lower court’s ruling and predicting that it would be reversed by the Supreme Court. It’s hard to see any real difference between Scalia’s situation then and Ginsburg’s now with regard to Second Amendment cases involving Heller.

But even assuming my opinions are correct, there’s still a Steve Jobs-ian “…one more thing,” here.

The Code of Conduct isn’t actually binding on Supreme Court Justices. The reason, as Chief Justice John Roberts has explained in the past, has to do with the structure of our federal system.

“The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts,” Roberts said. “Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”

Now as a matter of practice, Supreme Court Justices have generally followed the Code of Conduct even though they aren’t required to do so. There’s just no judicial remedy if they don’t.

I suppose impeachment by Congress might be an option if the political winds allowed it, but that would be a very heavy lift. Technically, Congress can impeach a justice for “high crimes and misdemeanors”. There’s no judicial review for Congressional impeachment decisions, beyond the judgment of the people in the next election cycle.

So the question isn’t really should Justice Ginsburg recuse herself from cases related to Trump or the Second Amendment, but would she do so? That answer, depending as it does on the intellectual integrity of the justice, is unknowable. But I don’t see any reason why, if push came to shove, those of us who advocate on behalf of the right to keep and bear arms shouldn’t avail ourselves of this tool in legal arguments, and push for it politically, should Justice Ginsburg get her wish of a case presenting an opportunity to overturn Heller fulfilled. There’s no reason we shouldn’t continue to remind the Justice about her own clearly expressed lack of impartiality on civil liberties. As a clever man once said: “If you get hit, punch back twice as hard.”

That path won’t exactly re-affirm the reputation of the Court in the eyes of the people. The damage has already been done by Justice Ginsburg herself. In light of that, perhaps the Justice really should just pack it in and head for New Zealand, regardless of who wins in November.

 

59 Responses to Will Justice Ginsburg Have to Drop Out of Future 2A Cases?

  1. Seems like it is high time we the people started clearing house of crooked politicians of all stripes. The system of checks and balances is broken.

  2. Hopefully the old bat will step down. Any reason would do as far as I’m concerned. She’s ancient and completely out of touch with the will of Americans, nor does she have any actual understanding of what “Constitutional Law” really means.

      • I think that’s exactly what Hillary would do. Another young radical to join the other younger radicals that Obama appointed. Don’t forget that Bill Clinton appointed Ginsberg to the court. Lifetime appointments to the federal bench need to be eliminated. As for Ginsberg being removed from future 2A cases – it’ll never happen. She won’t remove herself and short of impeaching her (which won’t happen) no one can force her off the cases. The witch has no ethics.

        • I’ve said it before, and I’ll say it again, the supreme court is the perfect place FOR lifetime appointment.

          The lifetime appointments of a small group of people provide a long term stability factor to the government. This keeps a short term political faction or ideal from completely changing the fabric of governance, while still allowing long term social change to take effect. Imagine if any one president were allowed to appoint an ENTIRE BRANCH of the supreme court, that would turn our republic, with checks and balances, into a beurocracy.

          But by having the lifetime appointments restricted to a few members, rather than a large mass such as The House, it is easier for outside parties (not specifically political entities) to keep an eye out for complete corruption of a Justice.

          This is what I feel we see now, the Liberal Supreme Court voting block corrupts the idea of the court itself. Rather than 9 separate entities that average themselves out, we now have 3 to 4 justices that are essentially of one mind, taking almost half the power of a branch of government, with only 1/9th the thought put into it.

          I do not think that RBG needs to recuse herself from the SCOTUS, I think she needs to resign from the court entirely while making a public speech about her time being a corruption of the court, and that the surviving members redefine their sense of propriety and impartiality to reflect their status as Judges of this nations highest legal court.

        • The USSC is the perfect place to have 9 tyrants in black robes dictate to over 300 million people laws that completely and intirely violate the the checks and balances of the constitution.

          When Roosevelt was in office for almost 12 years, he was able to pack the courts with a majority progressive court that devestated the constitution and lead to the rubber stamping of the huge growth of federal power and federal agencies that the constitution specifically did not allow.

          Just the USSC “interpreting” the right to murder tbe unborn is the perfect example of the tyranny of 9 men and women with an agenda of eugenics forcing down the throats of the American people some thing that had been historically and still is considered an act of murder by most people in this country.

          Every federal program, agency and most federal laws, if not supported by the primarily progressive court, since Roosevelt packing the court, would have never passed constitutional muster.

      • So, let’s make sure Clinton (I refuse to call her Hillary like she’s some old friend) doesn’t win. Trump is the candidate whether you like it or not, so get behind him and win.

        • Use hildebeast, cankles, pant-suit, shrillary, etc. We’ll know exactly who it is.

        • The problem with “Clinton” is it makes me think her husband is being referred to, yes, even after all this time.

          I go with “Hitlary” myself.

        • As an aside…”Clinton” brings up memories of Bill Clinton.

          Most Americans still have warm fuzzies about Bill. Reminds ’em of a lovable rogue, no matter his politics or mistakes.

          I don’t want people to associate lovable anything with Hillary.

    • Are you kidding? Now that she’s shown her true self and been rebuffed she’ll cling to her position until she’s 6 feet under.

  3. I think Trump is reputed for outbursts but that one likely takes the cake. Who do you appeal to post supreme court? Probably doesn’t mean a lot though.

  4. Upon reading her apology, I noted that “ill-advised” and “regrettable” would sum up her entire career.

  5. If Clinton is elected she will pass an executive order stating Ruth’s vote counts twice. If Trump is elected hopefully she’ll just move to an island in the Pacific off Australia.

    She thinks Heller was a bad decision. Why does it not jive with the constitution? Or the more logical she just doesn’t want people to have guns and doesn’t give a hoot what the constitution says.

    Activist judges need to go. They have one job interpret the constitutionality of law and to keep out of partisan politics. So maybe two jobs. People have lost faith in the FBI is the SCOTUS next?

    • Any proponent of Constitutionalist policy lost faith in the Supreme Court, I don’t know, a hundred and twenty years ago. What used to be a question of application is now a question of interpretation.

  6. Justice Roberts is hiding the ball. NOTHING prevents the Supreme Court from adopting a Code of Ethics for themselves. But Aristocrats do not like restraints on their conduct.

  7. Welp, if Kagan (who helped write the legal framework for the ACA) didn’t recuse herself in that case, RBG didn’t recuse herself in Obergerfell (despite being involved in several homosexual wedding proceedings), and Sotomayor thinks one’s race is an acceptable lens to view the law through, do any of us *REALLY* think these unconstitutional hacks care about even the *appearance* of impartiality…?

  8. Her public outburst was either caused by 80 years of the liberal disease eroding her brain function or she has reached that age where you just stop giving a fuck and want to do everything your way. Either way, she’s a dinosaur and should retire.

  9. She should, but she won’t.

    My retarded niece (yes, I say retarded, because she is) has more moral fiber than RGB.

    Or Kagan.

    Or the Clintons.

    Or, oh hell, just pick someone.

    • “Retarded”?

      Thanks for using the correct term, not some feel-good “differently-abled” bullshit. She is what she is, we have a moral obligation to help her, and help her to be as productive as she can be, for herself and society. All humans deserve some real dignity.

      But pretending someone is something they are not is not only facile stupidity, it does the person in question a great injustice.

      • Well, I could use the more socially acceptable term of “exceptional” (as in not the norm) but both her parents and I use the term “retarded” because she is below the norm. In some aspects way below the norm. Yet she knows how to go to the bathroom, not to hit or bite others, not to abuse animals, and not to be anything like RGB (thank God.)

        Overall, really a sweet kid. Just sad that she’s going to be that sweet goofy kid all her life. In some respects, her other health issues that will limit her life will be a blessing.

  10. “…a judge should not…..a judge should not….”

    No use of the affirmative phrase ‘will not’ or ‘shall not’.

    I don’t see this affecting Buzzy Ginsberg in any way, in that kangaroo court.

  11. So who’s wrestling with pigs? I can’t get that image out of my mind about this evil old baby murderer gun grabber…talk about a faker. Too bad Scalia never influenced it…

  12. Very out of character for her to be this blunt; they must have had a new guy wearing that wrinkly old moulted snake skin the other day.

  13. She should recuse herself but likely won’t.

    As for moving to NZ, good luck with that. NZ has some of the tightest visa requirements in the world and even tighter restrictions on who can live there more than a year. Generally, to “move to NZ” you have to prove you have a skill they find useful. Veterinarians and doctors are high on the list as are people with a masters or PhD in a hard science. Lawyers…. not so much.

    When my family spent a year there (my parents were on a sabbatical to teach chemistry) it was a heavy lift to get the proper papers and that was only possible because the university vouched for them.

  14. Besides her obvious anti-gun stance lies an anti-gentile undertone. I would wager that the majority of gunowners are Gentiles. Can’t prove it, just saying.

    • Yeah, its becuz “da jooz” all right, lol –you do realize that most city dwellers, especially wealthy city dwellers of status or lineage, believe exactly the way she does? She/they believe they are superior beings to the unwashed others outside their gated communities, but it has nothing to do with ‘the Zionist Conspiracy,’ and everything to do with living adjacent to the consequences of their liberal urban policies (ghettos, crime, poverty, subversive/destructive cultures thriving without opposition)

      • The biggest problem with Jews is that so many are liberal/progessive.
        Just think that if with the incredible intelligence, industry and ability that they show in practically every field of endeavor; a majority were conservative/constitutionalists, with a complete dedication to free market capitalism and the belief in the second amendment that shall not be infringed.

        Oh well; instead, with the majority believing as progessives and the multi cultural embracing of unrestricted immigration of a culture that believes the beheading of infidels, and jews is commanded by Allah, they will once again feel,in time, especially in Europe, the society wide pogroms and mass death of their race. Not by Nazi’s this time, but by thier spiritual brothers in blood and death, the fundumentalist Islamist.

  15. I might agree that she would have to recuse herself if Trump were involved in a case, as there is personal bias.

    But judges have very frequently expressed opinions about laws and past decisions. They in fact should! Scalia very many times expressed how he though Roe v. Wade was badly decided and that the Constitution made no provision one way or another- that abortion, like most things, were left to the democratic process. And he sat on cases involving abortion nonetheless, as well as he should. (FWIW Ginsburg, a champion of abortion, also criticized Roe v Wade as wrongly grounded… it really is a bad case legally)

    E.g. Scalia here https://www.youtube.com/watch?v=Rj_MhS2u-Pk

    She is wrong about her stance on the law on gun rights, but her expressing her opinion on law or a case already decision is not impropriety. Scalia I think is somewhat right (I agree on his rejection of substantive due process as a lie), but again right or wrong he expressed an opinion on law in public

    • I was about to say something similar. But I wanted a good reference to post and after reading it, I determined that Scalia framed his remarks around the constitutionality of the rulings he was discussing.
      Ginsburg on the other hand was expressing an Ideology and or a political bias.

      • Well, then it’s the same what Scalia said, since Ginsburg doesn’t base her rulings on the constitution.

    • The issue is not that she expressed an opinion on a case, a law, or a legal interpretation. The issue is that she flat out said she would like to overturn the Heller decision as soon as possible, not based on legal grounds, or even the merits of a related case, but because she just disagress with a clearly enumerated right. She has already decided her vote ahead of time and therefore can *NOT* be assumed to be impartial and erring on the side of the Constitution/freedom, as the SCOTUS was intended to be.

      • She didn’t say that. She does in fact have a problem with Heller from legal/constitutional standpoint – as exemplified by the minority opinion in Heller which she signed. She didn’t say anything new that wasn’t in that opinion.

        • Um, I don’t recall “it was a very bad decision” in the dissenting opinion. And if she is already looking to ‘reconsider’ the Heller decision based on a future case involving gun control that may not even be related to the Heller (or even McDonald) issues. Then she clearly isn’t interested in a constitutional debate, but a philosophical one about firearms. Futhermore, there is really no gray area at all around the idea of arms being a personal right, from historical (i.e. Federalist papers, state constitutions, common law, etc.), legal (the ‘common right’ nonsense came about in the first ‘progressive era’ circa 1905 from a federal court case iirc, and not ‘always prevalent’), logical (the government can not take its own guns away? Hmmm…), or even constitutional standpoint (the 2A is literally one sentence that is very clear and succinct). So we are not left with much in the way of reasoning for feeling that Heller was a bad decision outside of personal philosophies, which should have *no place* in deciding law.

          RBG has been very outspoken on this issue with timing coinciding with Democratic party posturing. A disturbing trend from someone who is supposed to be impartial for all the power that is vested in them (and that in and of itself is a whole ‘nother debate).

  16. She doesn’t have to recuse herself. The other Justices just need to leave her slumbering during nap time.

    • Won’t work. Breyer will wake her up for a vote, if he thinks she might vote his way.

      Saw him speak in person, once. The guy is more of an amoral pragmatist than even Posner.

  17. Ginsburg is a federal employee. Federal employees are subject to disciplinary action under the Hatch Act. While she may not have been on official duty her position should be beyond reproach. She has basically retired herself in her fear of a Republican taking office. It is probably especially unnerving that she waited beyond the opportunity for Obama to fill her position with another liberal.

    • Yeah, Obama probably should be indicted under Hatch for letting Hillary use AF1 and the presidential-seal podium as he gallivants cross country to promote her full-time. Yeah, no one’s getting indicted; Hatch is for “little people” who say good things about Republicans at the office.

  18. Should she be recused – sure. Will she – no.

    That said, there’s nothing wrong with a political response. Every single ruling she’s involved in should be challenged. I get that it’s the Supreme Court. However, everything she does from now on is tainted, so “precedents” she is part of now get challenged. Every one. Every single time.

    And, as judicial appointments come up, questions about their politics among other thing are now fair game. Since we’ve seen this level of lack of restraint by Judges, it’s fair to ask what leanings they might have, you know, that they’ll indulge.

  19. She should, but she won’t. Anybody else starting to, still seeing, continuing to see, a trend with these people? RBG with these comments, Clinton with Benghazi, Clinton with emails, IRS and conservative groups, ATF with rule changes and “clarifications”. The rules don’t apply to them, it’s sad really.

    Love him or hate him Trump scares these people to death, that’s enough for me to vote for him. Well that and knowing that each person’s vote only counts one time. So when I go in and vote I can have a little satisfaction knowing that I just cancelled out Hillary Clinton’s vote for herself. It the little things that make me laugh.

  20. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” Ginsburg said in a statement Thursday morning. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

    She was not apologizing for her remarks, only for having stated them publicly.

  21. I can tell you one thing.
    As soon as Trump gets into office
    He will have her impeached for mental incompetency.

    So that will be two slots in SPOTUS he will stack.

  22. “The Wall Street Journal’s Law Blog quotes Professor Ronald Rotunda, a constitutional law and legal ethics scholar: “Justice Ginsburg would ‘probably [have] to disqualify herself in any case seeking to overturn Citizens United and the Second Amendment cases.’”

    No, she wouldn’t. Maybe you haven’t noticed but rules don’t apply to democrats. They can violate the Espionage Act at least 110 times and still run for president. They hold sit-ins on the House floor in complete defiance of the House rules and they drag as many television cameras in as they can to cover it. They understand power. They get it. They realize that rules only apply to the chumps that let the rules be applied to them.You go in like you own the place and everybody will waste their time sorting out whether you do or not until it’s way to late to do anything about it.

    We’re not in a fair fight. We’re more or less playing by the rules and they couldn’t be more thrilled because they’re not that dumb. The rule of law is openly dead, which means that now it’s the law of the rulers. So, no RBG will not have to recuse herself. If Loretta Lynch didn’t have to after meeting with Bill, then neither does RBG.

  23. She even implied she’d consider moving to New Zealand if Trump managed to be elected commander in chief.
    You go girl!….and keep on going!

  24. Who’s going to make her? She sure as hell won’t do it voluntarily. Washington DC is out of control.

  25. Since Obama doesn’t plan on leaving DC after he leaves presidency, I wonder if Hillary would tap him for becoming a justice on the supreme court. From what I can tell there is very little requirements beyond age, citizenship, and residency. Not that I am for Obama becoming a justice, mind you. I am just seeing this as a possibility to extend his lucrative career in government.

    • That was the price of “Non-Prosecution”
      Obama will replace Scalia.
      Taft became a SCOTUS justice after his presidency, so it has happened before.

  26. Justice Ginsburg should have been removed from the Supreme Court (via our so called Congress) when she showed her contempt (openly) for the US Constitution as a whole in 2012. She is not an impartial jurist, she is a judge who would use her position to legislate from the bench. She has been accused of such thinking, now with her own public statements she has (herself) shown her true colors. A reference of her comments from 2012:

    http://dailysignal.com/2012/02/08/justice-ginsburg-i-would-not-look-to-the-u-s-constitution/

  27. “Recuse” is not good enough. She needs to resign as:

    “should Justice Ginsburg get her wish of a case presenting an opportunity to overturn Heller fulfilled.”

    A huge part of the job of a supreme court “justice” (they are not merely judges as they are in fact jurists) is deciding which cases the court will and will not hear.

    “There’s just no judicial remedy if they don’t.”

    Then we need a non-judicial remedy.

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