Donald Trump and his polarizing ideas have attracted widespread criticism. However, I suspect that few expected to find a harsh, vocal critic in a United States Supreme Court justice. Judges, after all, are held to the highest standards of impartiality, and political statements can easily raise the question of judicial bias. Against this backdrop, Justice Ruth Bader Ginsburg’s comments about Trump’s presidential campaign present an interesting case study. What happens when a judge is openly opposed to a presidential candidate but has no relevant case on the docket? Could such a comment lead to a finding of bias in Canada?
In July 2016, Justice Ginsburg described Trump as a “faker,” commented that “[h]e has no consistency about him. He says whatever comes into his head at the moment,” and implied that she might move to New Zealand if Trump became president. Although she later apologized for the remarks, her comments generated significant criticism. Legal scholars and ethicists pointed out that, as judges sometimes hear cases involving political candidates, such comments could cast doubt on their impartiality. A prime example was Bush v Gore, in which the United States Supreme Court was called on to resolve an election dispute. Meanwhile, Trump himself has called for Justice Ginsburg’s resignation.
A Canadian Reaction
Judicial bias cases are common in Canada, with the Supreme Court’s latest ruling on the subject released in 2015. The test is well settled: would a reasonable person think that the judge could not decide the case impartially? What matters is the appearance of bias, not actual bias—demonstrating actual bias is next to impossible, as bias is often unconscious. The inquiry is contextual: the reasonable person considers the judge’s impugned conduct, comments, or extrajudicial activities in light of the entire trial. There is a strong presumption that judges, given their judicial oath and extensive training, will remain impartial and open to persuasion while hearing a case.
Justice Ginsburg’s comments would be relevant if she heard a case involving Trump in the future. Assuming this situation occurred in Canada, a court would likely find that, although her comments were troubling, they would not establish bias on their own.
Based on Canadian and international case law, Justice Ginsburg’s comments would likely be deemed inappropriate but would not establish bias in themselves. Even when judges have been openly hostile or rude towards a party and/or counsel, courts have held that more is needed to establish bias. In one Canadian case, an adjudicator consistently denied a prison duty counsel’s joint submissions and made unfounded complaints about her to Legal Aid Ontario. When the lawyer made a bias claim, the Federal Court held that the adjudicator’s previous conduct was not relevant, and his conduct in the current case did not establish bias. Similarly, a British case involved a judge who had previously been openly critical of a lawyer. The Court of Appeal held that the judge’s negative opinion of the lawyer was not sufficient to establish bias. Therefore, in Justice Ginsburg’s case, a Canadian court would likely need additional evidence to establish bias.
Justice Ginsburg’s position on the Supreme Court would also make a finding of bias less likely. Both in Canada and abroad, claimants have struggled to establish bias at the appellate level. As one South African judge noted, there is an even stronger presumption of impartiality at the appellate level, and the collegial nature of an appellate court “reduces the leeway within which the personal attributes, traits and dispositions of each of the judges operate.” Indeed, two bias claims have been brought against Supreme Court of Canada judges in the past twenty years, neither of which was successful.
Whether or not a finding of bias would be made against Justice Ginsburg, she would encounter difficulties in the court of public opinion. It is well accepted that judges should avoid openly discussing political topics. Judges can hear cases on almost any subject, including actions by politicians and government policies, and any statement indicating a judge has a set opinion may lead a party to feel that he or she would not receive a fair trial. One Canadian case did not actually address the issue of judicial bias, but the circumstances are worth discussing. After a federal employee’s dismissal led to a standing ovation in the House of Commons, the judge hearing the employee’s challenge likened the House’s reaction to “people around a guillotine.” Members of Parliament accused the judge of contempt of Parliament and bias. Meanwhile, a Judicial Conduct Committee panel criticized the judge for participating in controversial political debate, noting that constitutional conventions prevent the judiciary from interfering in parliamentary matters and vice-versa. Justice Ginsburg would therefore be criticized in the court of public opinion for engaging in political debate.
Depending on what happens in the election in November, Justice Ginsburg’s comments could become compromising if a case involving Trump were to come before the U.S. Supreme Court.