Clarence, Ginni and the Court Unbound by Ethics Rules

The saga of the Thomases — Clarence, the Supreme Court justice, and Ginni, the far-right conservative activist — will likely be taught in legal ethics classes for decades to come.

A quick review:

For weeks following the 2020 election, Ginni engaged President Donald Trump’s Chief of Staff Mark Meadows repeatedly, via text message, about how to overturn the election and block a peaceful transition of power.

In Dec. 2020, Justice Thomas participated in a high court case — i.e., he did not recuse — where Texas was seeking to invalidate the election results in several states President Biden won.

On Jan. 6, 2021, Ginni attended the rally at the Ellipse in Washington that preceded the attack on the Capitol.

In Feb. 2021, Justice Thomas participated in — and dissented from — a denial of cert. in two cases related to challenges to Pennsylvania’s election procedures.

In Dec. 2021, Ginni signed a letter calling the congressional committee investigating the Capitol attack “legal harassment to private citizens who have done nothing wrong.”

In Jan. 2022, Justice Thomas issued the sole dissent on an emergency application that asked the Court to block the release of White House records concerning the events of Jan. 6.

And last week we learned about the aforementioned text messages.

The question remains: what are Justice Thomas’ ethical obligations now and into the future should another election or Jan. 6 case reach the high court? On the one hand, judicial spouses should be able to have their own lives and their own careers. On the other, the longstanding claim by the couple that they simply do not ever talk to one another about their work strains credulity, and any reasonable observer would see Ginni’s actions as reason enough for Clarence to hit the proverbial recusal button as fast as humanly possible.

The truth, though, is there are no real recusal rules for Supreme Court justices. Or, rather, the rule is that a justice disqualifies himself or herself from a case whenever that justice sees fit.

To repurpose an old phrase from former Justice Potter Stewart, the Court’s posture on conflicts of interest has been, “I know it when I see it.” And, they’d like for us to simply trust that they are exercising wise judgment.

Sure, there’s the Code of Conduct for United States Judges that lays out a set of principles for what constitutes ethical behavior both inside and outside the courtroom, but it only applies to lower court judges.

And there’s a federal recusal statute, 28 U.S.C. §455, which dictates when disqualification of a judge or justice is “required.” Section 455(a) states that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And subsection (b)(5)(iii) adds that a justice “shall also disqualify himself [if] he or his spouse […] is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

But this law contains no enforcement mechanism — no consequences for when it’s ignored — and it’s increasingly apparent that it’s being ignored by Justice Thomas. Yes, there’s impeachment and removal for justices, but there is little serious talk about that in this case, and the current political reality means it’d likely never happen.

So where does that leave us?

There’s lots that we still don’t know. Was Ginni in touch with other would-be insurrectionists? Was she on the payroll — “interest” generally implies “financial interest” — of anyone being investigated by the Jan. 6 Committee? Was she advising any of the efforts in court to overturn the election? (She is an attorney after all.)

But in essence, none of this should really matter. The recusal standard should be that a reasonable person looking at the facts of a case believes that the judges in it are impartial. And we’ve crossed the Rubicon here over and over again.

In terms of what’s next, Congress must act. For a long time, they’ve let the judiciary police its own. Today the Supreme Court appears unwilling, unable or uninterested in doing so. If we are to have a fair, just and independent judiciary, that must change: a formal Supreme Court Code of Conduct. A more exacting recusal statute. A publicly available “conflicts sheet” for every justice. And periodic reviews of the justices’ recusal decisions and nondecisions via oversight hearings.

That might not change the facts in this saga, but it might prevent the next one from taking root.