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When Can a Justice Be Disqualified From Serving on the Supreme Court?

By Casey C. Sullivan, Esq. | Last updated on

The Notorious RBG made herself a bit more notorious earlier this month, after she repeatedly criticized Donald Trump in the press, saying he was a "faker" and joking about moving to New Zealand should he become president. After a swift backlash from the left and the right, Justice Ginsburg apologized, saying that "judges should avoid commenting on a candidate for public office" and promising that "in the future I will be more circumspect."

Justice Ginsburg's mea culpa didn't satisfy some critics, however. Trump called on her to resign, while others have said her comments reveal a political bias which should disqualify her for the Court. Which raises the question, to what extent is such a thing even possible?

Judicial Recusal and Supreme Court Refusals

Federal law states that "any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. And there are cases in which Justice Ginsburg's impartiality might be questioned, at least when it comes to a potential Trump administration.

Should the Supreme Court be faced with a contested election, a la 2000's Bush v. Gore, Justice Ginsburg would likely have to recuse herself, at least according to Stephen Gillers, a scholar of legal ethics at NYU Law. "Under this test, Justice Ginsburg's remarks would prevent her from sitting in the unlikely event of a 'Clinton v. Trump' case that determines the next president," Gillers recently told CNN.

Justice Ginsburg made her electoral leanings clear enough, after all, when she not only spoke out against Trump, but also discussed the importance of the next president, "whoever she will be."

But when it comes to recusal, there's a catch. The Supreme Court justices, sitting on the highest court in the land, have no one above them to tell them when to recuse themselves. Each justice decides on his or her own when recusal is required. And while that process often works, there have been cases where critics have objected to a justice's failure to recuse.

The process usually works out well, but there have been recent occasions when a justice's refusal to recuse him or herself has lead to controversy. Justice Scalia refused to step down from a case involving then-Vice President Dick Cheney, his good duck-hunting friend, even issuing a lengthy memorandum to justify his decision. Justices Kagan and Thomas, as well, both received criticism for not stepping down from Obamacare cases, and others have criticized justices for deciding cases that could affect their financial interests.

In the unlikely event of a disputed election that requires Supreme Court intervention, it's unlikely that Justice Ginsburg would refuse to recuse herself, but it's not impossible.

From Recusal to Removal

Of course, the sort of situation imagined above is rare, and many scholars think that Justice Ginsburg will be fine dealing with the more routine issues that often bring the executive branch into the Supreme Court. Steven Lubet, of Northwestern Pritzker School of Law, for example, says that, on policies that "don't involve the personal fortunes of the president ... challenges on executive power or the legality of programs would not trigger disqualification."

But what if one of the other branches of government disagrees? Though appointments are for life, it's technically possible to have a Supreme Court justice removed from the bench. Justices can be removed from office by impeachment.

There's even a bit of precedent for it. More than 200 years ago, Justice Samuel Chase became the only Supreme Court justice ever impeached. A highly political justice, Chase has been described as "a shamelessly partisan judge, who let his Federalist leanings openly influence his judicial decisions and conduct on the bench." The house passed articles of impeachment against him in 1805. Chase argued that he was being tried for his politics, not any actual crimes, and shortly later the Senate voted to acquit him.

So, yes, it's possible that Justice Ginsburg could be disqualified from the Court, in the case of a disputed election or her impeachment. But both those scenarios are about as likely as her actually moving to New Zealand.

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