Guardrails needed on Supreme Court

York Dispatch editorial board

There was already a pretty strong case to be made that Supreme Court Justice Clarence Thomas should recuse himself from cases involving the Jan. 6, 2021, attack on the U.S. Capitol, what with his wife’s high-visibility advocacy for overturning the 2020 presidential election.

But disclosures last week that Virginia “Ginni” Thomas campaigned strenuously and directly with the White House — repeatedly texting then-Chief of Staff Mark Meadows — makes the case airtight.

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After all, the Code of Conduct for United States Judges requires that, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which … the judge or the judge’s spouse … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

That bar would seem to be met in the case of the Thomases, said Louis J. Virelli III, a Stetson University law professor who has written about Supreme Court recusals and the Constitution. 

“You have the wife of a Supreme Court justice advocating for, effectively, an insurrection, on a matter which, at least in part, could end up before the court,” he told the Washington Post. “That’s pretty dramatic.”

FILE - U.S. Supreme Court Associate Clarence Thomas speaks at the University of Notre Dame in South Bend, Ind., on Sept. 16, 2021. Thomas has been hospitalized because of an infection, the Supreme Court said Sunday, March 20, 2022. Thomas, 73, has been at Sibley Memorial Hospital in Washington, D.C., since Friday, March 18 after experiencing “flu-like symptoms,” the court said in a statement. (Robert Franklin/South Bend Tribune via AP, File)

There’s just one problem, and it’s a big one: The judicial code of conduct doesn’t apply to Supreme Court justices. So, while Clarence Thomas should recuse himself, he’s not compelled to. It’s entirely up to him.

Sure, the justices talk a good game about consulting the code on matters of recusal, and they occasionally do sit out cases — often when they’ve done previous work on a case before the court or hold stock in a company involved in a case. But they can also give themselves a free pass.

The late Antonin Scalia, for example, penned a lengthy memorandum justifying his decision not recuse himself from a 2004 case involving his hunting buddy, then-Vice President Richard Cheney. And four years prior to that, Clarence Thomas was, infamously, the deciding vote in Bush v. Gore, the case that determined the son of the man who nominated him to the Supreme Court would become president.

As with these cases, Thomas’s participation in arguments regarding the Jan. 6 attack at the very least creates the appearance of a conflict of interest. Remember, Ginni Thomas wasn’t just publicly advocating that the election be overturned, she was making that case through a direct pipeline to the White House, often in terms mirroring the worst ramblings of QAnon conspiracists.

“Help This Great President stand firm, Mark!!!” she texted Meadows in one of 29 messages the former chief of staff turned over to the House committee investigating the attempted coup. “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.”

FILE - Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, arrives to watch Amy Coney Barrett take the Constitutional Oath on the South Lawn of the White House in Washington,Oct. 26, 2020, after Barrett was confirmed by the Senate earlier in the evening. Virginia Thomas sent a series of increasingly urgent text messages imploring White House Chief of Staff Mark Meadows to act to overturn the 2020 presidential election according to copies of the messages obtained by The Washington Post and CBS News. (AP Photo/Patrick Semansky, File)

The fact that Thomas has already participated in Jan. 6-related cases (indeed, he was the lone dissenter in an 8-1 decision this past January ordering release of White House records related to the attacks) offers no reassurance that he will do the right thing going forward.

It shouldn’t be up to him.

Justice Elena Kagan told a congressional committee three years ago that Chief Justice John Roberts was considering a high court ethics code. It’s time to stop considering and start implementing.

Leaving recusal decisions solely to the discretion of individual justices is foolhardy. It needs to end. If the justices themselves can’t or won’t institute a code that clearly defines when recusals are mandated, Congress must step in. The integrity of the court and public confidence in its decisions hang in the balance.