With the US Supreme Court both overturning most parts of the 9th Circuit Court’s injunction against President Trumps’ travel from six predominately Muslim countries and granting a a writ of certiorari for the case as a whole, many people, including 58 Republican lawmakers, are requesting that Justice Ruth Ginsburg recuse herself from the upcoming case due to her overt and obvious bias against the President.
Given her comments throughout the 2016 elections, it’s easy to understand why so many people think that Ginsburg should recuse herself.
I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.
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?
I canâ€™t imagine what this place would be â€” I canâ€™t imagine what the country would be â€” with Donald Trump as our president. For the country, it could be four years. For the court, it could be â€” I donâ€™t even want to contemplate that.
Ginsburg has shown a strong bias against- and a a nigh on hysterical antipathy towards President Trump. As such, the ethical thing for her to do is to recuse herself from this upcoming case and any and every case involving President Trump’s administration that reaches the SCOTUS in the future. That being rightfully said, the claim that she is legally bound to do so is effectively meaningless and nothing but another iteration of the political kabuki we’re too used to.
While the relevant statute, 28 U.S.C. Â§ 455(a), does technically apply to SCOTUS Justices, so does the longstanding long accepted tradition of “Duty to Sit.” Additionally, there is really no tested means of enforcing 28 U.S.C. Â§ 455 upon the SCOTUS. Essentially, the SCOTUS being the nation’s highest court, there’s no authority to appeal to in the case of the SCOTUS Justice not recusing themselves.
A different but related note. Our concerns about Ginsburg’s lack of partiality are being heavily played by those with something to gain. One, Ginburg is part of the minority in the SCOTUS. Two and much more importantly, the SCOTUS lifting of most of the injunction against the “Travel Ban” was delivered per curiam, meaning it came from a unanimous decision by the Court – including Justice Ginsburg.
So be neither too shocked nor too concerned if Ginsburg doesn’t recuse herself. It is likely that, at worst, she would be one of the minority dissenting opinions on the case and even that is actually in doubt.