Last week, Supreme Court Justice Ruth Bader Ginsburg spoke out against Donald Trump in interviews with The New York Times and CNN. She said that she “didn’t want to contemplate” a Trump administration, and also called the presumptive Republican nominee a “faker.” Ginsberg’s remarks are not only an embarrassment to herself, but they lowered the station of the office she holds. (I will leave for another day asking hypothetically what reaction the mainstream media and Democrats would have had if Justice Thomas or Justice Alito had publicly criticized Hillary Clinton). Chief Justice John Roberts has done Yeoman’s work steering the court away from politics. With her lapse of judgment in a couple interviews, Ginsberg has reverse-engineered much of those efforts. And although Ginsburg has publicly (if only halfheartedly) expressed regret for her outbursts, this event highlights another troubling point: a double standard that exists in the federal judiciary.
Federal district and appellate courts are bound to the Code of Conduct for United States Judges. Among other things, this code bars judges from supporting and opposing political candidates and also bans any political activity by judges. SCOTUS is not bound to this code, but rather they try to adhere to its “principles” according to Chief Justice John Roberts.
My father is a United States District Judge in Birmingham. In the past, he has said lightheartedly joked that he and other appointed judges, in a way, surrender some of their first amendment rights when they take their oath. Although he has made those remarks with a sense of humor, I know that he takes that obligation stone cold seriously. We don’t put political signs in the yard; he doesn’t have a bumper sticker supporting any candidate on his car; and he can’t attend political rallies or fundraisers. He has political opinions to be sure, but just like all ethical judges, he keeps them to himself. It is vital to due process and the rule of law that when judges enter the courtroom they leave their personal beliefs at the door. This is why they wear a black robe. It signifies that judges will shield their own beliefs from decisions they make and interpret the law without bias.
Why is it that the lower courts must abide by these standards, but the most powerful court in the nation – the one that makes the most important legal decisions – is exempt? I understand that the Supreme Court is the only court expressly referenced in Article III of the Constitution and that the article provides that Congress may create other “inferior” courts from time to time. I also understand that SCOTUS Justices and members of the Senate and House are coequal Constitutional officers. For this reason, Congress has not imposed a code of ethics on Supreme Court justices.
Yet, there have been many efforts to get the Court to adopt a code of conduct and ethics. The Supreme Court Ethics Act and other similar legislation have not been passed, but a petition with over 130,000 signatures has challenged Chief Justice Roberts to adopt such a code. Nevertheless, and particularly in light of this recent ethical lapse by Ginsburg, the Court should voluntarily adopt its own ethical code.
In practice, Ginsburg’s personal bias should eliminate her from cases involving a potential Trump administration. Her own remarks have raised serious questions about whether she could administer a fair ruling when it comes to the presumptive Republican nominee. But, unlike her lower court colleagues, there is no requirement that she recuse.
We all remember the civics lesson we learned in junior high school related to the three branches of federal government: the judicial branch interprets the law. Justices and judges are expected to be neutrals, a requirement we did not place upon the president or members of Congress. When a Supreme Court Justice violates that principal, and the Supreme Court has no ethical scheme to control or address that misconduct, we all lose.
Jake Proctor is a senior majoring in political science.
