The Right’s Cynical Embrace of Judicial Ethics

Another thrust of Paoletta’s argument is that the court’s current critics have overlooked missteps by the court’s liberal justices. This is also untrue. In the summer of 2016, Ginsburg famously criticized Trump as a “faker” and suggested that he could have a damaging effect on the country and the high court if elected. While ultimately true, it was also an extraordinary breach of the court’s neutrality by a sitting justice, and it was treated as such by most observers at the time, including myself.

Ginsburg ultimately did not recuse herself from any subsequent cases involving Trump. To my knowledge, she never explained why she didn’t do so or whether it was even considered. And to my knowledge, neither the Trump administration nor any prominent conservative legal figures seriously demanded that Ginsburg take the impractical step of recusing herself from all cases involving the executive branch for four years. And to the extent that other justices’ missteps are being overlooked, Paoletta hasn’t cited anything that wasn’t first reported by a mainstream news outlet.

One of the advantages of ethics reform for the Supreme Court is that it would affect all justices equally, whether they be liberal or conservative. It would be one thing to question the specific mechanics of ethics reform, as some conservative outlets have done, but it is another thing entirely to dismiss it out of hand—especially while citing examples of ethical lapses by the justices. Paoletta’s cynical approach continued in his National Review column, where he insisted that all of Thomas’s entanglements are just friends being friends.