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Legal ethics1 experts agree: Justice Thomas must recuse in insurrection cases
Supreme3 Court Justice Clarence Thomas and his wife, Ginni, find themselves increasingly in the eye of an ethics storm over her repeated texts urging then-White House Chief of Staff Mark Meadows to take steps to overturn the 2020 presidential election results. Those texts have raised questions about what Justice Thomas knew about his wife's activities, and when he knew it.
Each day seems to bring another piece of bad news for the couple — from reports that the House Jan. 6 committee intends to invite Ginni Thomas to testify, to Monday's decision by a federal judge in California finding that it is "more likely than not" that former President Donald Trump4 violated the law and "corruptly5 attempted to obstruct6" Congress in his attempts to overturn the 2020 election.
The decision came in a dispute between pro-Trump attorney John Eastman and the Jan. 6 committee, which was seeking a discrete7 set of documents. Eastman asserted that the documents were protected by attorney-client privilege, but U.S. District Judge David Carter largely rejected those arguments, ruling that Eastman must turn over 101 of the disputed 111 documents.
The ruling could well end up before the Supreme Court, providing yet another instance in which Justice Thomas will have to face a recusal decision.
Trump White House phone records show 7-hour gap on Jan. 6
Texts muddy the water
The modern day code of judicial8 conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Ginni Thomas is an outspoken9 conservative activist10, her husband is able to act as an independent judge on matters that come before the court, even matters that may touch on subjects of interest to Ginni Thomas.
But in the aftermath of the 2020 election, while Ginni Thomas was actively11 strategizing with the White House chief of staff on overturning the election results, Justice Thomas repeatedly participated in cases that came to the court directly or indirectly12 involving those election results.
One of these was the court's decision in January, requiring that Trump's White House records be turned over to the House committee investigating the Jan. 6 riot at the U.S. Capitol. Only one justice disagreed: Clarence Thomas.
Ginni Thomas's newly released texts and her husband's failure to recuse himself in the congressional subpoena13 case have pulled the couple into an ethics vortex.
Judicial ethics experts weigh in
"The subpoena of documents when his wife's own texts are among the pile of documents responsive to the subpoena — that's a slam dunk," says Richard Painter, who served as ethics counsel for the George W. Bush White House. "He had to recuse. He didn't. I'd want to know why," he continued.
NYU law professor Stephen Gillers, author of a leading text on judicial ethics, agrees. "It was his obligation as a justice under the recusal statute14 to ensure that nothing she had been doing warranted his recusal," he says, adding that Justice Thomas "could not maintain a kind of false ignorance, closing his eyes and ears."
Why didn't Thomas recuse? James Alfini, dean emeritus15 of South Texas College of Law and also a judicial ethics expert, speculates that Thomas "didn't want to embarrass his wife" or himself for that matter.
Each of these experts on judicial ethics previously16 argued that Ginni Thomas's political life did not create a conflict of interest requiring Justice Thomas to recuse. But this time, they all agree that Ginni Thomas crossed the line, and so very likely did her husband in not recusing himself from cases that came to the court involving election challenges brought by Trump and his allies.
Supreme Court justices aren't covered by ethics rules
"I think this is different," says Charles Geyh, a legal ethics professor at Indiana University, Bloomington. "There's a difference between having a spouse17 who has an active interest" in seeing the law changed and "someone who is actually part of the story" of the case, he explained. "I don't know how someone could be impartial18 when their spouse is part of the record that may be before the judge."
Geyh notes that the federal recusal statute requires a judge to step aside when he or she has knowledge of disputed facts in the case, and Ginni Thomas' texts were part of the larger factual record that was produced pursuant to the Jan. 6 committee's subpoena.
Former Bush ethics adviser19 Painter, who is now an ethics professor at the University of Minnesota, is blunter: "He should make it clear that he's going to recuse from all of these Jan. 6 cases at this point."
There is, however, no way to force Justice Thomas to do that. The Supreme Court has made clear it considers the judicial code of conduct as guidance that it tries to follow, but is not obligated to do so. It is different from other courts because it is a court of nine. Unlike the lower federal courts, where there are lots of other judges to step in when a judge is recused, nobody can substitute for a recused Supreme Court justice; a tie vote leaves the case unresolved, and unnecessary recusals may undermine the interests of justice.
Moreover, under longstanding practice, each justice decides for him or herself when to recuse.
Few real options
So, what is the remedy if a judge goes rogue20? The Constitution provides for just one remedy: impeachment21. But that would be "a folly," says professor Alfini. Only one justice has ever been impeached22, and he was subsequently acquitted23.
What's more, as professor Geyh notes, "Judges make innocent mistakes all the time," and they get reversed on appeal. "The only time they get disciplined" is "if they willfully failed to disqualify" in violation24 of the judicial code of conduct.
The fact is that there are some 25,000 judicial officers in the country, just nine of whom are not subject to the code of conduct, and those nine, Geyh observes, are "the most powerful judges in the country, if not the planet."
The Clarence Thomas recusal conundrum25 is the most vivid example of a court that has neither a system of accountability nor a system of transparency when it comes to recusal. There is no requirement for justices to disclose why they are recusing, nor is there a requirement that they provide an explanation on the rare occasion when one side in a case formally requests recusal and the justice declines to recuse.
The Thomas recusal matter, though, appears to have arisen at just the wrong time for the court. It comes at a time when justices have been desperately26 trying to persuade the public that the court is not a partisan27 institution.
As professor Geyh observes, justices are going on an "I am not a political hack28 tour" at the same time that Thomas is "part of the problem he is being called upon to resolve as a justice," all of which provides for "uniquely bad optics." Indeed, public opinion surveys indicate that approval of the court has dropped precipitously, from 68% approval in a 2019 Annenberg survey to 40% in a Gallup poll last fall.
Legal ethics experts seem to agree that now is the time for the court to write its own ethics rules. If the justices did that, they could create a mechanism29 for a justice who is unsure about recusal to submit the question to the other members of the court. It may not be an ideal solution, but neither is the status quo.
1 ethics | |
n.伦理学;伦理观,道德标准 | |
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2 transcript | |
n.抄本,誊本,副本,肄业证书 | |
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3 supreme | |
adj.极度的,最重要的;至高的,最高的 | |
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4 trump | |
n.王牌,法宝;v.打出王牌,吹喇叭 | |
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5 corruptly | |
腐败(堕落)地,可被收买的 | |
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6 obstruct | |
v.阻隔,阻塞(道路、通道等);n.阻碍物,障碍物 | |
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7 discrete | |
adj.个别的,分离的,不连续的 | |
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8 judicial | |
adj.司法的,法庭的,审判的,明断的,公正的 | |
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9 outspoken | |
adj.直言无讳的,坦率的,坦白无隐的 | |
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10 activist | |
n.活动分子,积极分子 | |
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11 actively | |
adv.积极地,勤奋地 | |
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12 indirectly | |
adv.间接地,不直接了当地 | |
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13 subpoena | |
n.(法律)传票;v.传讯 | |
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14 statute | |
n.成文法,法令,法规;章程,规则,条例 | |
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15 emeritus | |
adj.名誉退休的 | |
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16 previously | |
adv.以前,先前(地) | |
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17 spouse | |
n.配偶(指夫或妻) | |
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18 impartial | |
adj.(in,to)公正的,无偏见的 | |
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19 adviser | |
n.劝告者,顾问 | |
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20 rogue | |
n.流氓;v.游手好闲 | |
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21 impeachment | |
n.弹劾;控告;怀疑 | |
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22 impeached | |
v.控告(某人)犯罪( impeach的过去式和过去分词 );弹劾;对(某事物)怀疑;提出异议 | |
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23 acquitted | |
宣判…无罪( acquit的过去式和过去分词 ); 使(自己)作出某种表现 | |
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24 violation | |
n.违反(行为),违背(行为),侵犯 | |
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25 conundrum | |
n.谜语;难题 | |
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26 desperately | |
adv.极度渴望地,绝望地,孤注一掷地 | |
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27 partisan | |
adj.党派性的;游击队的;n.游击队员;党徒 | |
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28 hack | |
n.劈,砍,出租马车;v.劈,砍,干咳 | |
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29 mechanism | |
n.机械装置;机构,结构 | |
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