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.