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Strengthening Checks and Balances
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Analysis

A Potential Watershed Moment on Supreme Court Ethics

Associate Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC. (Photo by Drew Angerer/Getty Images)

There aren’t many things more important to the integrity of the government than rules ensuring judges are impartial and behave ethically, yet judicial ethics tend not to get much attention unless something goes wrong. Something has, and it could be a watershed moment: Recent reporting has revealed deep entanglements between Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, and former President Donald Trump’s efforts to remain in power after the 2020 election. This episode deserves scrutiny in its own right (in addition to the myriad financial and other associations Ginni Thomas has had with litigants before the Supreme Court). But it also adds another data point to the vast body of evidence that it is past time to overhaul the inadequate ethics rules for Supreme Court justices.

Last week, CBSNews and the Washington Postreported that Ginni Thomas had texted with former White House Chief of Staff Mark Meadows to share conspiracy theories about the 2020 election and aggressively urge the White House to overturn the results. Earlier reporting also revealed she attended the rally that preceded the January 6 attack on the Capitol. Having the spouse of one of the most powerful judges in the country advocating for a coup is concerning in any situation (the House January 6 committee is reportedly interested in interviewing Ginni Thomas).

Failure to Recuse

This development also illuminates several of the many gaps in the ethical framework that governs the Supreme Court. Setting aside the propriety of Ginni Thomas’s conduct, this situation creates more specific ethics problems for her husband, because the Supreme Court has already considered several cases about challenges to the 2020 election and the congressional investigation into January 6.

In light of the revelations about Ginni Thomas’s activities, many judicial ethics experts have concluded — as have we — that Justice Thomas should have recused himself from those cases and must do so in any similar future cases. In one case where the Supreme Court rejected Trump’s effort to prevent communications from the White House from being disclosed to the January 6 committee, Thomas was the lone dissenter. While it may be unlikely that his wife’s texts were in the batch of materials that were the subject of the litigation, Thomas’s dissent makes it appear that he would have limited congressional investigators’ access. Such a limitation could undermine the investigation into actions his wife supported and could directly benefit her, as her communications may be the subject of future requests from the committee.

The recusal law has a catch-all provision: A judge must recuse when their impartiality may reasonably be questioned.

Federal law would appear to require Thomas to step aside. It requires disqualification when the judge or a family member is a participant in a case, or has an interest that could be “substantially affected” by a case’s outcome.

The recusal law also has a catch-all provision: A judge must recuse when their impartiality “may reasonably be questioned.” Even while recognizing that Ginni and Clarence Thomas are two adults who can act independently of one another, reasonable people could understandably believe that the extraordinary nature of Ginni Thomas’s conduct, combined with her possible implication in the investigation, makes Clarence Thomas less than impartial. And that’s a problem for the Supreme Court, which must rely on public trust and the power of persuasion for its rulings to have any effect.

But despite a rather clear violation of the law, there is no way to enforce Thomas’s failure to recuse: It is up to each judge or justice to decide when they must step aside (even if a party in a case formally requests that they do), and there’s no penalty (other than impeachment) if a judge fails to do so. In short, the current rules set up two options for Supreme Court ethics: total impunity or the Herculean task of Congress removing a Supreme Court justice from office (something that has been attempted only once — in 1805 — and resulted in the justice’s acquittal in the Senate). Even if Congress decides that step isn’t warranted here, this situation certainly raises questions that Justice Thomas should have to publicly answer for.

A Broad View

The difficulty in moments like this, when one judge’s actions highlight the deficiencies in judicial ethics rules, is that defenders of that judge too often cast efforts to improve the rules for all judges as an attack on the one judge under scrutiny. Throw in a deep partisan divide over the courts, and it’s a recipe for inaction.

But this is where context is important. Determining how to address the situation with the Thomases and strengthening ethics rules are two different steps. Reforming the rules isn’t an attack on Thomas (or whoever may have provided the example of the moment). It’s a way to make sure the system works better for everyone and to preserve the legitimacy of the courts.

Reforming the rules isn’t an attack on Thomas. It’s a way to make sure the system works better for everyone and to preserve the legitimacy of the courts.

Few ethics scandals involve the specter of an attempted coup. But no judge or justice, regardless of their ideology or who appointed them, is perfect, and there are plenty of other instances that underscore the need for ethics reform. This past fall, a Wall Street Journal report detailed over 600 instancesin which federal judges heard cases even though they or their family held shares of companies that were involved in the litigation. We (and plenty of others) have written for years about questionable actions by Supreme Court justices, including appearances before ideological organizations such as the Federalist Society and American Constitution Society; failures to identify financial conflicts; participating in cases they had been involved in prior to joining the court; making inflammatory partisan remarks; and making money from book sales while on the bench. Every justice who has served in the last decade falls into at least one of these categories.

Moving Forward

So what do we do to ensure ethical behavior from judges? Last summer, our Task Force on Judicial Selection called for a holistic package of ethics reforms, including improving recusal and financial disclosure standards and implementing a code of conduct for the Supreme Court. That remains the best approach, because it addresses the range of ethics issues facing the courts, not just the crisis of the day.

Because recusals are top of mind now, it’s clear the recusal law needs more specifics, including expanding its scope to cover more non-financial conflicts of interest and providing guidance on what kinds of situations create the appearance of a conflict. There also needs to be better disclosure rules as a means to surface potential conflicts in the first place, including those presented by a close family member’s employment, associations, clients, and donors. And there needs to be a better way to enforce the rules — perhaps such as the system in Texas that the Task Force highlighted, in which a judge’s peers, rather than the judge in question, makes the decision about whether to recuse.

Some of these problems, like more robust disclosure obligations, may require amendments to the Ethics in Government Act and the disqualification statute. For others, a Supreme Court code of conduct would be a good place to grapple with the specific ethical concerns that arise from serving on the nation’s highest court. We’ve repeatedlyhighlighted why it’s a problem that the justices, the most powerful jurists in the country, are the only ones without such a code. Creating one would be an opportunity to fill some of the current gaps and, just as importantly, would provide a signal to the public that the justices — who hold their positions for a lifetime — do not think they are above the law.

The Supreme Court’s mission of delivering impartial justice requires that judges be held to a high standard. While it is Clarence Thomas who has demonstrated an utter ethical failure today, strengthening judicial ethics rules is not an attack on any one justice or on the court as a whole. His conduct is just an extremely high-profile and high-stakes example of why we should demand rigorous ethical standards of the highest court in our land: to protect the independence and impartiality of the courts.