All judges are supposed to be impartial and unbiased; this is all the more important when your job is on the highest court in the land. But Supreme Court Justice Clarence Thomas has repeatedly been in the spotlight for perceived partisanship, often linked to the activism of his wife, Virginia “Ginni” Thomas.
Last week, The Washington Post obtained 29 text messages exchanged between Ginni Thomas and former White House Chief of Staff Mark Meadows following the 2020 election. The messages, exchanged in November 2020, reveal that Ginni Thomas supported President Trump’s efforts to overturn the election and show how she used her access to Trump’s inner circle to promote his strategy to overturn the election results:
“Help This Great President stand firm, Mark!!!” she wrote. “You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
Texts Pile on to Bad Publicity for the Supreme Court
Politics aside, the texts show an alarmingly personal rapport between two people connected to what are supposed to be separate branches of government, implicating separation of powers concerns. And all of this comes at a time when partisanship on the Supreme Court is already a concern.
In recent years, perceived partisanship has led to calls for new ethics rules for SCOTUS. Ginni Thomas in particular has been increasingly under public scrutiny since the contested 2020 election. Right before the January 6, 2021, rally become an assault, she cheered on Trump supporters, and latter wrote on a Facebook post that went viral, “love maga people!!!!” This spotlighting seems to have impacted the Court’s reputation; a September 2021 Gallup poll found that the Supreme Court’s public approval rating is at an all-time low. Further, in January 2022, an article featured in The New Yorker sparked conversations about Ginni Thomas’s connection to groups directly involved in controversial cases going before the Court.
In light of all this, will we see Justice Thomas recuse himself from any election cases picked up by SCOTUS that are still working their way through the courts? Unfortunately, it’s likely up to Justice Thomas himself to answer that question.
No Ethical Oversight for Supreme Court
There are rules in place governing the vast majority of federal judges (and states have their own codes based on ABA guidelines). The Code of Conduct for Federal Judges is created and updated by the Judicial Conference of the United States, the policy-making office of the federal court system. Its members include the chief judges of every federal circuit court, among other federal judges, and it is presided over by the Chief Justice of the Supreme Court. The code applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” But importantly, the code doesn’t apply to SCOTUS.
The federal legislature has also stepped in to check judicial ethics. Congress enacted a Judicial Misconduct Statute governing federal judges (but once again, not SCOTUS justices). This statute allows anyone to file a complaint alleging that a judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts.”
Congress also enacted the Judicial Disqualification Statute, which requires federal judges and justices to recuse themselves “in any proceeding in which [their] impartiality might reasonably be questioned.” They must also disqualify themselves if:
- They have a personal bias or personal knowledge of disputed facts in a case;
- Their prior practice as a lawyer connects them to a lawyer, judge, or party in the case;
- They have a connection to the case based on prior government work; or
- They or their family knowingly have a financial interest in the case.
However, unlike other federal judges, the Supreme Court does not have codified ethical rules. When sworn in, Supreme Court justices promise to “administer justice without respect to persons” and “faithfully and impartially discharge and perform all the duties” under the Constitution. The Court can create its own rules to supplement this oath, but so far has not done so.
Discretionary Recusals Are Hit or Miss
Although they aren’t required by law to do so, Supreme Court justices have a history of removing themselves from cases where there’s a risk of bias.
Now-retired Justice Sandra Day O’Connor often recused herself when her husband’s law firm was involved in a case before the Supreme Court. And Justice Stephen Breyer removed himself when one of the parties in a case was an entity for which his wife was a board member.
Justice Thomas himself famously chose to recuse himself in the seminal 1995 Equal Protection case of United States v. Virginia, which struck down sex-based admissions. The case held unconstitutional a longstanding policy of admitting only males to the Virginia Military Institute; Justice Thomas’s son was a student there at the time.
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But sometimes, justices choose to remain on the case. In 2004, prolific constitutional scholar Erwin Chemerinsky argued that Justice Breyer’s involvement in developing federal sentencing guidelines should have disqualified him from deciding on their constitutionality in United States v. Booker. The justice not only opted to participate in the decision but further penned a dissenting opinion where he disagreed with the Court’s analysis in both Booker and Blakely v. Washington.
“If there’s any group in our profession or in society that we want to have impeccable ethics…it’s judges,” Chemerinsky said. “That’s most important for the Justices of the Supreme Court—they are the most visible judges we have in the country. They are the model for all other judges.”
Given the current public scrutiny of the Court and how inflammatory the 2020 election (still) is, it’s likely in everyone’s best interest for Justice Thomas to bow out of any election-related suits that reach him. But ultimately, it’s his decision.