The Supreme Court is about to render judgment on the 4th Circuit’s upholding of an injunction against Trump travel ban EO. Professor Jacobson at Legal Insurrection suggests that, based on her prior remarks about Trump, Justice Ginsburg ought to be considering recusing herself:

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”.

Professor Jacobson goes on to cite many other instances in which Ginsburg criticized Trump in no uncertain terms. She received negative press for this and finally stopped the practice, but her anti-Trump words are on record and they are quite unusual for a Justice of the Supreme Court.

Jacobson adds:

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.

I remember the incidents, and I criticized her for them at the time. But just now, when I read the Ginsburg quotes in Professor Jacobson’s LI post, one in particular struck me as especially relevant to the current travel ban EO case. Here’s the Ginsburg quote:

“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.”

In the travel ban cases, judges have cited Trump’s prior statements about wanting a Muslim ban and used those statements of Trump’s to invalidate his later travel ban on the basis of the earlier utterances, which they feel were motivated by religious animus towards Muslims. Aside from the rather dubious legal reasoning involved, this sort of judgment implies that Trump’s prior statements were the real ones, expressing his deepest feelings and the wellspring of his later EO, and that he’d merely learned to hide them.

But if we look at Ginsburg’s prior statement—the one I just quoted—it’s clear that she should be throwing out Trump’s “Muslim ban” campaign statements as worthless and meaningless, and evaluating his travel EO strictly on its own words. In other words, if Ginsburg believes that Trump is a “faker, has no consistency, and says whatever comes into his head at the moment,” then she would have no way to determine that his Muslim ban statements meant anything more than anything else he has said, before or since, and they must be discarded and the travel EO evaluated on its face only.

I don’t for a moment think Ginsburg will recuse herself from this case. And I don’t think for a moment that she’ll follow the line of reasoning I’ve just presented and rule in favor of allowing Trump’s EO to stand. But I think logic indicates that, if she does rule on the case, she should not take Trump’s prior Muslim ban statements (or any other prior statements of his) into consideration at all.