During Justice Ginsburg’s seemingly endless inter-term media tour (which didn’t, in fact, end when the new term started in October), the 81 year old answered questions about retirement at every stop but also gave her thoughts on a couple of cases that may soon find their way to the Supreme Court – comments that, according to the Wall Street Journal, “reignited a long-simmering ethical debate […] over when a justice ought to sit out a case.”
Ginsburg addressed the merits of HB2, a Texas law that effectively closes two-thirds of the state’s abortion clinics and is before a federal appellate court there – a likely intermediate stop on a trip to Washington.
While Supreme Court justices are free to give wide-ranging interviews on their life and the law, commenting on cases that are before the court – or look to be headed that way – is a faux pas. In fact, the Code of Conduct for U.S. Judges states, “A judicial employee should avoid making public comment on the merits of a pending or impending action,” but the justices are, of course, the only federal judges currently exempt from following the code.
Our bet? She sits on the case anyway should it reach One First Street – and doesn’t respond directly to calls for her recusal.
The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.
Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.