On the Blog of Legal Times, Tony Mauro highlights the criticisms that Josh Blackman and I have offered of Justice Ginsburg’s negative comment on the Texas abortion legislation now under challenge in the Fifth Circuit. He also quotes two law professors who contend that Ginsburg’s comment doesn’t require her recusal. Let’s consider their views.
Amanda Frost observes that Ginsburg “should have erred on the side of caution and avoided making any statements about legislation at issue in a pending case.” But, Frost says, under the relevant law, recusal is required only when a judge has “expressed an opinion concerning the merits of the particular case in controversy.” In her view, Ginsburg’s comment was “a single sentence and a statement of fact” rather than “a decision as to whether the law is or is not a health measure or an undue burden.”
I think that Frost gets the relevant law wrong and slices the salami too thin. The provision Frost cites (28 U.S.C. 455(b)(3)), as I understand it, concerns judges who have previously served in other governmental employment and who in that other capacity “expressed an opinion concerning the merits of the particular case in controversy.” Ginsburg is subject to the general rule under 28 U.S.C. 455(a) that she must disqualify herself “in any proceeding in which [her] impartiality might reasonably be questioned.”
Consider again Ginsburg’s exchange with Jeffrey Rosen:
[Rosen]: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?
[Ginsburg]: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business.
I don’t see how anyone could read Ginsburg’s two sentences as reflecting anything other than a very negative opinion of the Texas law and as thus leading a reasonable observer to question her impartiality. Of course, Ginsburg’s comment doesn’t amount to a “decision.” But that’s not the right test.
The second law professor Mauro quotes is Jeffrey Shaman, who, without any apparent reference to applicable law, simply asserts, “It is unrealistic to expect that a justice’s comment on a particular issue should operate to disqualify him or her from hearing a case involving that issue.” The point that Blackman and I have made isn’t, however, that Ginsburg has commented “on a particular issue”; we’re not contending that her public comment on abortion bars requires her to disqualify from any case involving abortion. The problem, rather, is that Ginsburg has commented negatively about a particular law that the Supreme Court might be called on to review.