by Michael Liss
Carved in marble above the entrance to the Supreme Court Building is the motto: “Equal Justice Under The Law.”
It is a noble sentiment, expressing the highest ideals of our nation. Here, in this building, before these nine robed figures, the one essential that soars above means, above influence, and above race, religion or class, is equality before the law. Here is the place where justice is blind so that justice can be served.
That is the theory. The reality is nothing at all like it. Public trust in the Supreme Court as an institution has dropped markedly (a Quinnipiac University Poll conducted May 12-16, 2022, shows that 52% of the public disapprove). Far worse, respondents, by an alarming 63-32 margin, answered “politics” to the question: “In general, do you think that the Supreme Court is mainly motivated by politics or mainly motivated by the law?”
John Roberts, a man who believes deeply that the mission of the Court to be a cool and impartial arbiter, has got to be in despair. He is now stuck with two stories of leaks and the growing sense of irrelevance inside his own conference. The Chief Justice is a gradualist, a man who wants conservative change, but by degrees, constructively, gently, and respectfully. As this Term has shown, the newly empowered hard right have brought the bulldozer and a healthy supply of scorn for the past to go with it.
All this before the curious case of Associate Justice Clarence Thomas. Clarence Thomas and his wife, the conservative activist Virginia Thomas. Ginni Thomas and the former Trump Chief of Staff and coup enabler Mark Meadows. Ginni Thomas and former Justice Thomas clerk and legal fantasist John Eastman. The first two tied together by marriage. The last three bound by an unbending commitment to reversing an election, and a willingness, even an eagerness, to use any means, moral or not, legal or not, to attain that goal.
John Roberts’ personal Hell. In this, the 18th year of his reign as Chief Justice, his annus horribilis. As the Court, his Court, defines itself as the muscular arm of activist conservatism, in drops an insurrectionist stink-bomb. Were there people inside the Court who were sharing information about a purported “heated fight” among the Supreme Court justices over whether to hear arguments supporting Trump’s challenge, as Eastman emailed a pro-Trump lawyer, Kenneth Cheesbro, on December 24, 2021?
With all that, with the story of Ginni Thomas’s involvement becoming ever more granular, now Roberts has a public relations crisis on his hands, something that strikes at the heart of SCOTUS’s now-diminishing reputation for impartiality. Clarence Thomas didn’t recuse himself on any election-related litigation, despite his wife’s involvement in the cause. Aren’t judges supposed to do that?
Well, here is where things get a little complicated, from both a timeline-related perspective and an ethical one. When Clarence Thomas was gleefully adopting whatever far-fetched legal theory was being pitched by Trump’s team before January 6th, you could put it off to politics. Thomas is not going to go out there with a bullhorn shouting, “Let’s Go Brandon,” but he’s utterly predictable in his loyalties. John Roberts might have rolled his eyes when Thomas (and Alito) showed interest in the Texas-led lawsuit that tried to invalidate the Electoral Votes of four swing states that went for Biden. Or when Thomas dissented at length to the Court’s refusal to upset Pennsylvania’s acceptance of mail-in ballots that arrived after Election Day. But he had to have groaned when Thomas was the only public dissenter from the SCOTUS decision to allow the National Archives’ release of Trump administration documents to the January 6th Committee.
Thomas’s decision to remain on the case was both inexplicable from an ethical perspective and entirely understandable from a marital one. In that trove of documentation (things that escaped burning or being flushed down the toilet) were 21 texts between Ginni Thomas and Mark Meadows, exhorting, encouraging, strategizing, even eulogizing the efforts to coup.
But wait, let’s be fair. Perhaps Thomas was just acting on his political preferences. Perhaps it was entirely innocent—after all, Ginni Thomas insists she never talks shop with her husband. If that were true, he wouldn’t know about the texts to Meadows, the recruiting she was doing with his former law clerks, the communications with John Eastman, the funding of buses for Trump supporters to go to the January 6th rally, her attendance at it, and the emails to 29 Arizona State Legislators urging them to throw out the popular vote and replace Biden Electors with Trump ones.
They say love is blind. But let’s assume for a minute he had some insight, some thought, that maybe Ginni’s busy days might have included some conversations with folks in the White House. Maybe Ginni, as a loving spouse, might break her “Cone of Silence” policy this one time, when Clarence was taking up the National Archives case, that her name was about to be plastered across the universe. In that circumstance, wouldn’t Thomas recuse, even if just on that matter?
Not if he doesn’t want to, because he doesn’t have to. As you have doubtlessly read elsewhere, Supreme Court Justices decide, on their own, what professional strictures they want to apply to any given situation. The gold standard for standards, the Code of Conduct For United States Judges, is actually more aspirational than it is mandatory, and explicitly exempts the Supreme Court. Justices can voluntarily follow the guidelines, but they are not required to do so.
There is another relevant statute, 28 U.S.C. § 455, which does apply to Supreme Court Justices (or purports to) and the terms are fairly clear: Self-Disqualification is called for “(a) in any proceeding in which [a justice’s] impartiality might reasonably be questioned.” Perhaps my standards of “reasonableness” are different than the Justice’s, but just how impartial can someone be about a spouse?
Think that’s not enough? Move to Section (b)(1): “He shall also disqualify himself in the following circumstances: Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
This one is a little tight. Justice Thomas obviously has strong opinions about the parties involved, but, in the absence of proof otherwise, we are stipulating that, up to this point, his wife kept him completely in the dark. So, not only is his wife not a “party” to the case, but, absent knowledge, there’s nothing for him to have a personal bias or prejudice about. Move to Section (b)(4). “He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
Ok, let’s assume Ginni doesn’t have a financial interest in the proceeding (other than general fundraising for right-wing causes). But “or any other interest that could be substantially affected by the outcome of the proceeding” seems to be potentially on point. This isn’t like your spouse wearing an “I Like Ike” button—right-wing politics is Ginni’s professional life
That is a lot of explaining to do. You would have to have a very clever lawyer (or be one yourself) to contort yourself into a good enough excuse not to recuse. Section 455 looks pretty much on point. Still, Justice Thomas is a very smart, very determined man. He’s also surrounded by loyal clerks who are some of the best and the brightest, and, if needed, he could tap into the rich loam of Federalist Society expertise.
I suspect Justice Thomas and whatever team he assembles would come to some of the following conclusions: First, one can make a very good argument that Section 455, to the extent it extends coverage to the Supreme Court, is unconstitutional. Stay with me: the Constitution, in Article III, created and partially empowered the Supreme Court. The Court’s existence is independent of Congress or the President, except for Advise and Consent on Presidential nominations, and Impeachment and conviction. Other than that, lifetime appointments and a guarantee of no reduction in salary insulate SCOTUS from political meddling by Congress or the President. This is actually a good thing—for all the talk of Trump Judges or Obama Judges, would we really want a ham-handed President effectively pressuring the Court?
Second (and Justice Roberts endorses this), recusals should be rare on a body that has only nine seats to start with, needs four votes to agree to take up a case in the first place, and, perhaps quite importantly, needs a majority to overturn a decision of a Court of Appeals. A recusal may not be in the interest of justice in some cases.
Third, while a litigant could make a complaint about a federal judge (this does occasionally happen at the District and Circuit Court levels), there’s no practical enforcement mechanism (short of Impeachment) that you can apply to the Supreme Court. There’s no process for appeal (appeal to whom, when there’s no one higher?)
Why the difference between the nine and the rest of the Federal Judiciary? Because those 800-plus other judicial positions in “inferior” courts exist because Congress passed, and George Washington signed into law, the Judiciary Act of 1789.
It seems inconceivable today that, for the first year of the Constitution, we had effectively no functioning Federal Judiciary, but it’s actually true. And it seems even more unlikely that we might not have had a fleshed-out Federal Judiciary without further action, but it’s true as well. The Constitution doesn’t demand it. Article III says “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may [emphasis added] from time to time ordain and establish.”
In fact, the delay was because of political resistance to the idea from the Anti-Federalists. In a reminder that history repeats itself, they were concerned about “judicial tyranny.” Would Federal Courts interfere with the rights of the states to make their own laws? In a further reminder that irony is enduring, one of the most vocal opponents of an extended Federal Court system was Elbridge Gerry (yes, that guy).
The power to create is also the power to modify and regulate. Congress could take an ax to the Judiciary Act—provided it did not mess with an active judge’s lifetime tenure and did not reduce his salary. Is SCOTUS, in fact, also regulated by Section 455? The statute says it is, and SCOTUS hasn’t challenged it, but it hasn’t had to. SCOTUS makes its own rules, although, in this case, it does so by situationally ignoring them without challenging them. Congress is not going to sue SCOTUS as an entity and the Supreme Court is not going to sue Congress to invalidate the law (again, what forum could they possibly use?). If Congress (or Congress acting at the behest of an angry President) wants to enforce a Section 455 rule that may or may not constitutionally apply in the first instance, it’s going to have to impeach the recalcitrant Justice.
We impeach Presidents a lot more than we impeach Supreme Court Justices. In fact, there has only been one successful Impeachment of a Justice (Samuel Chase) and he was acquitted by the Senate. Chase’s impeachment is exactly the type of example that led future Congresses to steer away from the entire experience. A staunch Federalist (and signer of the Declaration of Independence) who had been appointed to SCOTUS by George Washington, Chase was more than a little partisan and definitely not discreet in his speech. He irritated Thomas Jefferson (who, despite his saintly historical reputation, could be a bit touchy when it came to those who disagreed with his leadership), and Jefferson backed prosecution. It should have worked—the Senate was comprised of 25 Jeffersonian Republicans and only 9 Federalists, but Chase’s defense team gathered some of the best legal minds in the country, and, in the end, won his acquittal with the assistance of no fewer than six of Jeffersonian Republicans on each of the eight counts of Impeachment. Chase held his seat on the Court, and served until his death.
If there is a lesson in the Chase Impeachment, perhaps it’s that mere partisanship or a contrary ideological preference just isn’t impeachable, or, more accurately, impeachable but not convictable. There must be something more, something genuinely approaching a clear failure to engage in “good behavior.” Refusing to recuse on a particular matter likely won’t be enough.
How do we get Clarence Thomas to behave? Not through wagging a finger at him for most of his past conduct. We have to give him the benefit of the doubt of perfect ignorance of his wife’s involvement in a coup attempt, up to and even through his decision not to recuse on the National Archives case. He was entitled to his partisanship.
All that was before. Now, we know some of the iceberg. We know Ginni Thomas was in constant communication with John Eastman. We know that a federal judge (David Carter) has ruled that, more likely than not, Eastman had committed at least two crimes. We know more of what Ginni, Mark, and John were up to. We also know that Eastman was claiming knowledge of the inner workings of SCOTUS. We know these things, and Clarence Thomas knows them as well.
The “I don’t talk shop” excuse has exploded, and Justice is blind no more.
What’s next? On election-related suits, on coup- and Trump-related suits, Justice Thomas is now demonstrably and irretrievably compromised.
Will that matter? I have doubts, even if all Thomas has left as a reason not to recuse is an “I really don’t care. Do U?”
John Roberts surely cares about integrity. So should we all.