Bench Memos

Law & the Courts

Will Justice Ginsburg Recuse in Trump Tax Cases?

“How has he [Donald Trump] gotten away with not turning over his tax returns?”

That was one of several remarkably indiscreet comments that Justice Ginsburg made about then-candidate Trump in a CNN interview in July 2016. Now that the Supreme Court has granted review of cases that present the question whether Trump can be compelled to disclose his tax returns (and other financial papers), shouldn’t Ginsburg recuse herself from those cases?

(I’m grateful to Josh Blackman’s post on Ginsburg’s latest astonishing indiscretions for reminding me of her comment on Trump’s tax returns.)

To be clear, I do not take (and have never taken) the position that Ginsburg’s airing of her broad animosity to Trump requires that she recuse herself generally from cases involving the president or his administration. Our judicial system operates on the presumption that judges will set aside their own likes and dislikes in deciding cases. But that presumption may well be overcome when a judge has spoken out on a specific question that he or she will be deciding. (Specifically, under 28 U.S.C. § 455—which applies to Supreme Court justices as well as lower-court federal judges—that might well mean that the judge’s “impartiality might reasonably be questioned.”)

Here, where Ginsburg has already publicly expressed her astonishment that Trump has “gotten away with not turning over his tax returns,” it seems eminently reasonable to question whether she could impartially decide whether Trump should be required to turn over his tax returns.

For what it’s worth—and it shouldn’t be a factor in Ginsburg’s own assessment of her recusal obligations—it is highly unlikely that her recusal would have any effect on how the cases are decided. Take the scenario in which Ginsburg would be providing the decisive fifth vote against Trump. Without her participating, the Court would divide 4 to 4, and the result in the cases would be the same: an affirmance of the lower-court decisions against Trump. (I’ll set aside the farfetched scenario in which Ginsburg would be providing the decisive fifth vote in favor of Trump.)

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