Donald Trump’s second Executive Order on visa entry from six majority Muslim countries is now before the Supreme Court.

Trump is seeking review of the 4th Circuit’s decision upholding a Maryland District Court injunction halting the Executive Order. In addition to the Petition for a Writ of Certiorari asking SCOTUS to hear the case on the merits, Trump has a request for a stay of the lower court injunctions pending a decision on the merits. The application is on a fast track, with the Court setting June 12 as the deadline for opposition papers.

The 4th Circuit’s decision found that the Executive Order, though facially neutral, “in context drips with religious intolerance, animus, and discrimination” and that context was “a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office.”

Those statements, including by Trump himself, the 4th Circuit concluded:

… creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States…. As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion…. These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly…. EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The 4th Circuit decision has been widely criticized for its reliance on campaign statements, as well as for substituting judicial security evaluations for those of the executive branch.

This case, unlike other more mundane cases involving Trump policies that may come before the court, clearly places Donald Trump’s words, personality and credibility in issue.

One of the Justices already has expressed a view on Trump’s credibility. In July 2016, Justice Ruth Bader Ginbsburg was quoted in a CNN interview deriding Trump as “a faker”:

Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “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? The press seems to be very gentle with him on that.” …. “At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president … ” Her voice trailed off gloomily. “I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.” That July 2016 CNN lashing of Trump was not a one-off. Justice Ginsburg made two other negative public statements about Trump during the campaign (via Politifact ): Interview July 7, 2016 with Associated Press Asked what if Trump won the presidency, Ginsburg said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.” Interview July 8, 2016 with New York Times “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. Referring to something she thought her late husband, tax lawyer Martin Ginsburg, would have said, she said: “Now it’s time for us to move to New Zealand.”

Justice Ginsburg came under heavy criticism from a wide spectrum of commentators, since it is unusual for a Supreme Court Justice to express views on a political candidate and campaign. Even the Editorial Board of the NY Times agreed that Justice Ginsburg’s comments were inappropriate, Donald Trump Is Right About Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling. Three times in the past week, Justice Ginsburg has publicly discussed her view of the presidential race, in the sharpest terms…. There is no legal requirement that Supreme Court justices refrain from commenting on a presidential campaign. But Justice Ginsburg’s comments show why their tradition has been to keep silent.

In this election cycle in particular, the potential of a new president to affect the balance of the court has taken on great importance, with the vacancy left by the death of Justice Antonin Scalia. As Justice Ginsburg pointed out, other justices are nearing an age when retirement would not be surprising. That makes it vital that the court remain outside the presidential process. And just imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?

The Washington Post editorial board also was critical of Justice Ginsburg’s comments, Justice Ginsburg’s inappropriate comments on Donald Trump

However valid her comments may have been, though, and however in keeping with her known political bent, they were still much, much better left unsaid by a member of the Supreme Court. There’s a good reason the Code of Conduct for United States Judges flatly states that a “judge should not . . . publicly endorse or oppose a candidate for public office.” Politicization, real or perceived, undermines public faith in the impartiality of the courts. No doubt this restriction requires judges, and justices, to muzzle themselves and, to a certain extent, to pretend they either do or do not think various things that they obviously do or do not believe. As the saying goes, however, “hypocrisy is the compliment vice pays to virtue.” As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system….

Justice Ginsburg didn’t quite apologize, but did say she regretted the comments

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” Ginsburg said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” Later Thursday in an interview with NPR, Ginsburg described her remarks as “incautious.” “I said something I should not have said,” she remarked. When NPR’s Nina Totenberg asked her “if she just goofed,” Ginsburg responded: “I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with and I don’t want to discuss it anymore.”

Justice Ginsburg’s negative comments about Trump, though less direct, continued after inauguration. On February 24, 2017, the Washington Post reported:

Supreme Court Justice Ruth Bader Ginsburg, a noted critic of President Trump, suggested that she doesn’t believe the country is in good hands but said she is hopeful about the future. “We’re not experiencing the best of times,” Ginsburg said Thursday on BBC’s “Newsnight,” though she did not comment directly about the president.

In a case in which Trump’s campaign comments are front and center, how can Ginsburg hear a case in which she has complained publicly about Trump and Trump’s campaign?

This is not a situation where a Justice merely is presumed to have political leanings (don’t they all?), or is affiliated with one political party more than another. Justice Ginsburg has publicly questioned Trump’s credibility, and that credibility is an issue in the case as it presents itself in the 4th Circuit decision from which review is sought.

Justice Ginsburg cannot be removed from the case. The judicial code cited by the Washington Post editorial doesn’t apply to Supreme Court Justices. She would have to recuse herself voluntarily.

I don’t expect Justice Ginsburg to recuse herself. But her *campaign* comments about Trump’s campaign look even worse in hindsight.



