SCOTUS Usually Steers Clear of Politics ... Sort of

By Kimberly Strawbridge Robinson

July 18 — Justice Ruth Bader Ginsburg is in a league of her own—both in terms of her pop-culture-icon status and with recent comments she made about Republican presidential hopeful Donald Trump.

Several politicians have served on the high court, but it's “highly unusual” for a sitting Supreme Court justice to make comments about a political candidate, Mark C. Miller, a political science professor at Clark University, Worcester, Mass., and author of “Judicial Politics in the United States,” told Bloomberg BNA July 14.

But that's exactly what Ginsburg did in a series of press interviews—even calling Trump a “faker.”

“He has no consistency about him. He says whatever comes into his head at the moment,” Ginsburg told CNN July 13.

Some “politics” from the justices is inescapable, Brian Z. Tamanaha of Washington University School of Law, St. Louis, told Bloomberg BNA in a July 16 e-mail.

“Low politics” focusing on partisan issues is improper, but “high politics” focusing on political ideology is both fine and unavoidable, Tamanaha, author of “Beyond the Formalist-Realist Divide: The Role of Politics in Judging,” said.

Presidents, Governors, Senators ... Oh My!

Several politicians have sat on the high court, both Miller and Tamanaha noted.

“William Howard Taft was President, then later Chief Justice,” Tamanaha said.

“Earl Warren was Governor of California, then on the court; Hugo Black was a Senator from Alabama when he was nominated to the court,” he added.

Sandra Day O'Connor served in the Arizona State Senate before taking the bench, Miller said.

“All told, 15 U.S. Senators have served on the Supreme Court, including 5 in the 20th century,” Tamanaha said.

Political Animals

But even former politicians typically refrain from commenting on politics once on the court, Miller said.

The justices are aware that they are “political animals,” Miller said. He noted the repercussions their decisions can have on government and society.

And justices often send subtle—and sometimes not so subtle—hints of their party politics through their authored opinions, he said.

But almost all stop short of actually engaging in campaign-like activities, Miller said.

He pointed to President Taft as an example.

Sure, everyone knew where the former president stood on political issues, Miller said. But once on the bench, he stopped making overtly campaign-related statements, Miller said.

Code of Ethics

In fact, Canon 5 of the Code of Judicial Ethics specifically says that judges shouldn't “ ‘make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office,' ” Tamanaha said.

But Chief Justice John G. Roberts has said that the Code doesn't apply to Supreme Court justices.

Because the Judicial Conference of the United States, which crafts the Code, “is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for” the Supreme Court, Roberts said in his 2011 Year-End Report on the Federal Judiciary.

Roberts said that every Justice “seeks to follow high ethical standards” and consults it for guidance, but Miller said Supreme Court justices basically set their own boundaries.

Ginsburg eventually seemed to comply with the Code with regard to her comments.

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” Ginsburg said in a July 14 statement sent to Bloomberg BNA. “Judges should avoid commenting on a candidate for public office,” she said.

Some Politics ‘Inevitable.'

There are isolated exceptions to the justices eschewing party politics, Tamanaha said.

“Abe Fortas when he was a justice was a very close confidant with President Johnson and advised him on multiple political issues,” he said.

Still, Miller and Tamanaha agreed that it's best for justices to avoid party politics while on the bench.

“Federal judges are not elected and should not allow the agenda of a particular party to influence their decision,” Tamanaha said.

“However, it is unrealistic to think the background political views of judges (their political ideologies) have no impact on their opinions,” Tamanaha said.

“The Court is at times asked to decide open or contested legal questions for which the answer in part will depend on their background views or philosophies,” he said. “This is inevitable, so there is no point condemning it.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.