Given the stakes involved, that is not a good outcome. As the Supreme Court’s new code of conduct explains, “A Justice is presumed impartial and has an obligation to sit unless disqualified.”
So, demands for recusal shouldn’t be lightly made, and justices shouldn’t quickly resort to that solution notwithstanding the clamor. Nonetheless, there are situations in which law and common sense clearly counsel a justice to step aside.
That’s where things stand in the matter of Justice Clarence Thomas and the suite of Jan. 6-related cases now heading toward the Supreme Court. The extensive — indeed, passionate — involvement of the justice’s wife, Virginia “Ginni” Thomas, in challenging the election results is a textbook example of a situation that requires recusal.
Echoing the underlying federal law, the ethics code says a justice should recuse in situations where “the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
Could any unbiased and reasonable person doubt that Ginni Thomas’s avid participation in the “Stop the Steal” movement rises to that level? Justices’ spouses have every right to pursue separate careers, including careers in politics and advocacy, as Ginni Thomas chose. But those choices have consequences when cases in which they have an interest reach the Supreme Court. Consider:
· In the weeks after the 2020 election, Ginni Thomas sent a series of urgent texts to White House Chief of Staff Mark Meadows encouraging him to prevent what she termed “the greatest Heist of our History.” Ginni Thomas referenced “a conversation with my best friend just now” — a description she has used to refer to her husband — as part of her effort “to keep holding on.” She urged that Sidney Powell — who is an unnamed co-conspirator in the federal Jan. 6 Trump indictment and pleaded guilty in the Georgia election interference case — should be made “the lead and the face” of Trump’s legal team.
· Ginni Thomas lobbied lawmakers in Wisconsin and Arizona to set aside Joe Biden’s victory and choose a different slate of pro-Trump presidential electors. “Please stand strong in the face of media and political pressure,” she wrote on Nov. 9, 2020. “Please reflect on the awesome authority granted to you by our Constitution. And then please take action to ensure that a clean slate of Electors is chosen for our state.”
· Ginni Thomas emailed with John Eastman, the lawyer and former Clarence Thomas clerk who argued that Vice President Mike Pence had the authority to block certification of Biden’s victory. Eastman is an unindicted co-conspirator in the federal election interference case against Trump and has been charged in Georgia as well.
· Finally, Ginni Thomas attended the “Stop the Steal” rally on Jan. 6, 2021.
Now consider the Jan. 6-related cases that have reached or are about to reach the high court. The justices have been asked to grant an expedited hearing on Trump’s claims that he enjoys absolute immunity from prosecution for his activities as president. It agreed to hear a challenge to the federal law prohibiting obstruction of a congressional proceeding, which has been used to prosecute Trump along with Jan. 6 protesters. And it will be called on to consider whether, as the Colorado Supreme Court just ruled, Trump can be disqualified from running under Section 3 of the 14th Amendment.
Certainly, a spouse’s political activities can’t be automatically attributed to their partner. “Like so many married couples, we share many of the same ideals, principles, and aspirations for America. But we have our own separate careers, and our own ideas and opinions too,” Ginni Thomas told the Washington Free Beacon. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”
Fine, but Ginni Thomas’s avid and multipronged fight to prevent Biden from taking office fits the recusal standard to a T — Clarence Thomas’s “impartiality might reasonably be questioned.” She was too involved, too entwined with the bid to overturn the election results — and some of the leading players in that bid — to have her husband sit on cases involving the aftermath of those very efforts.
The recusal rules are much better at dealing with relatively picayune matters of financial conflicts than they are at sorting through these deeper issues of bias. It’s clear, for example, that justices should recuse themselves if they hold stock in a company with a pending case, or if their spouse is a partner in a law firm representing a client before the court.
The paradox is that the more consequential the potential conflict, the more malleable the standards become. That is particularly problematic because, as the court made clear in its new code and accompanying commentary, justices determine for themselves whether they are disqualified — no one can make them do it.
As a practical matter, I suspect Thomas’s vote won’t be determinative in the presidential immunity and Section 3 cases; the scope of the obstruction statute is likely to be a closer case. The safer bet is that Thomas won’t recuse himself, but it’s not out of the question. After all, when an appeal by Eastman reached the high court in October, Thomas did announce that he did not participate in the decision not to hear the case, although he provided no explanation.
“Individual Justices, rather than the Court, decide recusal issues,” the court observed in releasing its new ethics code. Which means Thomas will be the judge of himself. But in this tumultuous term, it is the entire court whose reputation will suffer if he chooses not to step aside.
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