Why Justice Ginsburg should recuse herself from the travel ban cases, and why ban supporters might not want her to (Updated)

As early as this morning, the Supreme Court may issue orders in the travel ban litigation.  I believe Justice Ruth Bader Ginsburg ought to recuse herself from these cases, but supporters of the ban just might want her to stay on them.

Some context: 28 U.S. Code § 455 requires any “justice, judge, or magistrate judge of the United States” to disqualify him- or herself when, inter alia, his or her “impartiality might reasonably be questioned” or when he or she has “has a personal bias or prejudice concerning a party.”

With respect to Justice Ginsburg, there seems to be plenty of evidence that fits these statutory disqualifiers.  Recall last summer when Justice Ginsburg engaged in what Washington Post reporter Robert Barnes called an “unusual and apparently unprecedented battle of words” with then-candidate Trump.

What exactly did she say?  Politifact (Wisconsin) noted that the “media that did the interviews did not publish transcripts of Ginsburg’s complete remarks” so it collected the Justice’s quotes that were published.  Here’s Politifact’s list:

Interview July 7, 2016 with Associated Press

Asked what if Trump won the presidency, Ginsburg said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

Interview July 8, 2016 with New York Times

“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.

Referring to something she thought her late husband, tax lawyer Martin Ginsburg, would have said, she said: “Now it’s time for us to move to New Zealand.”

Interview July 11, 2016 with CNN

“He is a faker.  He has no consistency about him.  He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that ….

“At first I thought it was funny,” she said of Trump’s early candidacy.  “To think that there’s a possibility that he could be president ….

“I think he has gotten so much free publicity ….

“Every other presidential candidate has turned over tax returns.”

This became too much, even for the viscerally anti-Trump New York Times.  In an editorial entitled “Donald Trump Is Right About Justice Ruth Bader Ginsburg” it called upon the Justice “to drop the political punditry and the name-calling.”  Shortly thereafter USA Today reported a somewhat chastened Ginsburg:

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

Later Thursday in an interview with NPR, Ginsburg described her remarks as “incautious.”

“I said something I should not have said,” she remarked.  When NPR’s Nina Totenberg asked her “if she just goofed,” Ginsburg responded:  I would say yes to your question, and that’s why I gave the statement.  I did something I should not have done.  It’s over and done with and I don’t want to discuss it anymore.”

However, it wasn’t “over and done.”  A few months later, Ginsburg communicated her views about Trump rather clearly when – as NBC News headlined – “Justice Ginsburg Wears ‘Dissent’ Collar Following Contentious Election.”  She didn’t stop there either.  After attending all eight Obama “State of the Union” speeches (and even hugging Obama on occasion) she skipped Trump’s.  As Rachel Stockman wrote on Law Newz:

Her decision this year to forfeit Trump’s speech was deliberate.  By doing this, Ginsburg sent a troubling message to those who still believe justices should remain above partisan politics.  Before she made this decision, she’d come under intense scrutiny by even liberal leaning lawyers, many of whom believed her remarks during the election crossed the ethical line.

And, no, Ginsburg still wasn’t “done.”  In late February of this year the Washington Times reported that the Justice told interviewers that the U.S. was ““not experiencing the best of times” under President Trump.””  It also reported her as saying that “[s]ome terrible things have happened in the United States but one can only hope that we learn from those bad things.”

You be the judge, but it seems to me that there is ample evidence that in Trump’s case Ginsburg’s “impartiality might reasonably be questioned” and, further, that she “has a personal bias or prejudice concerning” Trump.

However, there is a twist: it isn’t at all clear that the justices think they are bound by the statute, or even by the ethical code that governs other Federal judges.  Writing in 2011 Chief Justice Roberts  said that while the justices do consult ethical codes, “the limits of Congress’s power to require recusal have never been tested.”   Thus, the mandate of 28 U.S. Code § 455 seems to be suspect in the justices’ view.

According to Roberts, “the individual Justices decide for themselves whether recusal is warranted.”   He said that he had “complete confidence in the capability of [his] colleagues to determine when recusal is warranted” but admits that there is “no higher court to review a Justice’s decision not to recuse in a particular case.”   Moreover, Roberts said that “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.”

So there is no real restraint on Ginsburg or any of the other justices (short of impeachment).  However, Congress may act.  Representative Louise Slaughter, who has long campaigned for a Supreme Court ethics code, has again introduced legislation mandating one.

In any event, although voluntary recusals by Supreme Court justices are not especially rare, motions for recusal are unusual, but they do happen.  All of this said, I just don’t think it’s in Ginsburg’s nature to recuse herself, even in the face of a motion to do so.

Ok, so given her obvious animus towards Trump, why wouldn’t travel ban supporters want Ginsburg off the cases?   Think about this: CNN legal analyst Ariane de Vogue points out that one of the key issues in these cases is whether or not Trump’s statements as a candidate (and some as President) are appropriate considerations in interpreting the travel ban order.

De Vogue notes the dissent’s discussion in the 4th circuit case.  She says that Judge Paul Niemeyer “suggested that the Supreme Court will not buy into the use of Trump’s campaign statements.”  She explains that:

[Niemeyer] wrote that the majority “looks past the face” of the order and instead considers campaign statements.  He said that the approach “adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text.”  He warned that “opening the door to the use of campaign statements to inform the text of later executive orders has no rational limits.”

“Unless corrected by the Supreme Court, the majority’s new approach, which is unsupported by any Supreme Court case, will become a sword for plaintiffs to challenge facially neutral government actions, particularly those affecting regions dominated by a single religion,” he said.

My point is that if Justice Ginsburg chooses to sit on the case, she might reflect upon her own problematic public statements about Trump, and conclude that it would be too hypocritical for her to exempt herself from recusal, yet support a judgment that interprets his campaign statements in a way to “recast the plain, unambiguous, and religiously neutral text” of the travel ban directive.

She also may find it disconcerting that the majority of 4th Circuit judges rejected out of hand the Government’s argument that the court’s review of these campaign statements will “inevitably ‘chill political debate during campaigns.’”  Additionally, the majority opinion added, disturbingly, that to “the extent that [their interpretive] review [of Trump’s statements] chills campaign promises…[they] welcome the restraint.”

Is this really what we want judges to do?  However offensive the judges may think the campaign rhetoric was, in a democracy isn’t it the responsibility of the voters, not unelected judges, to make the value judgment?  Shouldn’t the electorate be the ones to “chill” ideas through their ballot box decisions?  And if judges are to divine the meaning of campaign rhetoric and use that interpretation to “recast” the meaning of a “facially neutral” government order into a nefarious action, where do they stop?

Should the inquiry go back to statements made in high school debates?  In college classrooms?  At the water cooler at work?  Can people in this country change their minds (particularly when they get legal advice), or are they forever bound by what Ginsburg characterized in her own case as “incautious” remarks?  Do we want this kind of shadow to hang over First Amendment activities, especially when they involve controversial public issues?

Ginsburg, despite her anti-Trump credentials, might surprise here.  After all, she has defended offensive and discomfiting speech in the name of the First Amendment.  In Snyder v. Phelps, she concurred in reversing a civil judgment against members of the Westboro Baptist Church who were picketing “military funerals to communicate [their] belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military.”  Here’s a quote from that decision (authored by Justice Roberts):

Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Again, do we really want judges potentially stifling public debate by “welcoming” the chilling of campaign rhetoric, even if that rhetoric is “hurtful speech”?  Isn’t it better for the electorate to know what the candidates actually think prior to the election, or do we want to develop a norm where candidates try to anticipate what protected First Amendment speech the judiciary might find pleasing?  In essence, to what extent – if any – should we want the unelected judiciary interposing itself into the electoral process in this way?

Given her own energetic First Amendment activity, Justice Ginsburg may be more sensitive than perhaps are others to the troubling long-term implications for freedom of speech (and the electoral process) posed by the lower court decisions in the travel ban cases.  She also may better understand that some “incautious” public statements that appear to indicate one thing, actually do not reflect the individual’s true belief (see e.g., here and here).

Let’s ask ourselves, are we witnessing yet another instance where a visceral dislike for the person of the current President could produce unwise precedents? Precedents that could come back and haunt those championing this cause when someone more to their liking gets in office?  Precedents that might undermine our society of free speech – and the sanctity of the judiciary?

As we like to say on Lawfire, you be the judge!

UPDATE:  This morning (26 June 2017) the Supreme Court, in a per curiam order, granted the government’s petitions for certiorari, and granted – in part – the government’s request for a stay of the injunctions.  Essentially, this means that the travel ban will go into effect “against foreign nationals abroad who have no connection to the United States at all.”  However, the injunctions against the ban will bar its enforcement against “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”  The Court will take up the merits of the case in October (provided the Court doesn’t find the case moot by then, which is entirely – but hardly positively – possible).

Justice Thomas, with Justices Alito and Gorsuch joining him, wrote an opinion concurring in part and dissenting in part.  Here’s an extract of that opinion:

The Government has satisfied the standard for issuing a stay pending certiorari.  We have, of course, decided to grant certiorari. See ante, at 8–9. And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its “compelling need to provide for the Nation’s secu­rity.” Ante, at 13. Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors the Government. I would thus grant the Government’s applications for a stay in their entirety.

In addition, Justice Thomas said he feared that the Court’s order will “prove unworkable” and that:

The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12.

The full opinion is found here and is well worth a read.  BTW, there was no indication that Justice Ginsburg recused herself from the per curiam order.

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