The controversy over Supreme Court Justice Ruth Bader Ginsburg’s remarks about presidential candidate Donald Trump and conservative rulings by the court points up the unique status of justices when it comes to judicial ethics, says the National Law Journal. Ginsburg told the New York Times, “I can’t imagine what the country would be” with Trump as president, adding half-jokingly that it might be time to move to New Zealand if he wins. She said D.C. v. Heller, which declared an individual right to bear arms, was a “very bad decision” that should be reversed. Her comments are drawing strong criticism, and a call by Trump for her resignation. It is uncertain whether Ginsburg would be required to recuse herself in future cases—especially when the court is short one justice.
The Code of Conduct for federal judges says they should not “publicly endorse or oppose a candidate for public office.” Supreme Court justices are not bound by the code, though they say they adhere to it. “Until Ginsburg and her colleagues are required to follow the Code of Conduct … this type of behavior from the high court may become more common, which would be an inopportune development at a time when the court is as polarized and as polarizing as ever,” said Gabe Roth of Fix the Court, which advocates transparency and accountability from the high court. Federal law requires recusal when a judge has “a personal bias or prejudice concerning a party,” but presidents are rarely parties in a personal capacity in Supreme Court litigation. One exception could be if November’s election lands in court. “In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments,” said Case Western University law Prof. Jonathan Adler in the Volokh Conspiracy blog. .