The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Ruth Bader Ginsburg, a.k.a. "The Notorious RBG," attracted substantial attention—and criticism—for recent remarks about presumptive GOP presidential nominee Donald Trump. Even those who generally agree with Ginsburg, and share her views of Trump, were quite critical. The New York Times, for instance, was sharply critical in an editorial titled "Donald Trump Is Right About Justice Ruth Bader Ginsburg." (Just think how off-base Ginsburg had to be for an NYT scribe to pen those first four words!) I blogged about those comments here, here and here; Orin Kerr did here.
The reason Ginsburg's comments were controversial were that it is generally recognized that judges should not inject themselves into political controversies, such as by commenting on elections. Among other things, it is generally considered unethical for a judge to try to use the prestige of her office to influence political outcomes. It is also understood that such comments suggest that a judge is less able to set aside her personal political views in the course of the work. (See also Steve Lubet's discussion here.) The code of conduct for federal judges expressly prohibits public comments endorsing or opposing candidates, and lower court judges have been admonished for crossing this line. While the Supreme Court is not formally bound by this code of conduct (for separation of powers various reasons [see update below]), the justices typically try to comply with the code's requirements. Asked to comment on the matter, Justice Stephen Breyer said,"If I had an opinion, I wouldn't express it."
Well, it seems that Ginsburg has thought better of her comments. In a statement released today, Ginsburg expressed regret and acknowledged that she should have held her tongue. From The Post's report:
In a statement issued Thursday by the court's public information office, Ginsburg seemed to agree with the criticism, although she did not offer an apology to Trump, who had demanded one.
"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," Ginsburg said. "Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."
While some had tried to defend Ginsburg's remarks, it seems not even the Notorious RBG was convinced by these apologia. It's a good thing, too.
Justices should be known for their work on the bench, not their political commentary, and there are plenty of other people out there to criticize Trump. That's not a job for the Notorious RBG.
UPDATE: As originally posted, I said that the code of conduct for federal judges does not apply to the Supreme Court due to separation of powers concerns. This was a quick and dirty—and, as a consequence—not-quite-right characterization. The code itself was developed by the Judicial Conference of the United States, and applies to lower courts. In addition, there are federal statutes that impose some additional obligations on federal judges. I do not believe the latter formally apply to the Supreme Court due to separation of powers concerns, though the justices have generally complied with these requirements and Congress could choose to impeach and remove a justice for violating these statutes. The Supreme Court could adopt a code of conduct much like the code imposed on lower court judges, but there might still be questions about how it would be enforced. The bottom line remains the same: Insofar as the Supreme Court justices are to be bound by a code of conduct, they must choose to adopt and comply with such a code themselves.