Ginni Thomas Texts Show Why The Supreme Court Needs A Code Of Conduct

By BRENNAN CENTER

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Ginni and Clarence Thomas

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The facts are simple yet jaw-drop­ping: Between the Novem­ber 2020 elec­tion and the Janu­ary 6 insur­rec­tion, Ginni Thomas texted White House Chief of Staff Mark Mead­ows 29 times, urging him to stop “the greatest Heist of our History.” One year later, Justice Clar­ence Thomas, Ginni’s husband, voted to block the release of White House records regard­ing the insur­rec­tion — records that likely include commu­nic­a­tions by his wife.

The imme­di­ate response should be clear: at a minimum, Justice Thomas should publicly explain what he knew about his wife’s commu­nic­a­tions with the White House, when he knew it, and why he parti­cip­ated in cases related to the insur­rec­tion and the results of the 2020 elec­tion. He should also pledge to step aside from any such cases going forward.

But a prom­ise to recuse is not enough.

The Supreme Court is facing a crisis of public confid­ence, and the justices have shown again and again that they cannot be trus­ted to police them­selves. It’s long past time for a Supreme Court code of conduct — one that anti­cip­ates the poten­tial for lawless­ness by the justices them­selves.

Indeed, the law already requires recusal in Justice Thomas’s case, stat­ing that justices must step aside from “any proceed­ing in which [their] impar­ti­al­ity might reas­on­ably be ques­tioned.” The stat­ute also requires justices to step aside if they know their spouse or family member has an “interest that could be substan­tially affected by the outcome of the proceed­ing.”

Thomas himself clearly knows this law, having recused six times from cases involving Wachovia while his son worked for the bank.

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So why didn’t this law prevent Justice Thomas from hear­ing a case that could reveal his wife’s private commu­nic­a­tions with the White House? Partic­u­larly since ethics experts say the law requires Thomas to ask about his wife’s activ­it­ies, not inten­tion­ally avoid know­ledge so he can claim ignor­ance?

As Chief Justice John Roberts has explained, the Supreme Court lets justices decide for them­selves whether they are conflic­ted. “I have complete confid­ence in the capab­il­ity of my colleagues to determ­ine when recusal is warran­ted, ” said Roberts in his 2011 report on the state of the federal judi­ciary.

It is clear today that the chief justice’s trust is misplaced. First, the law does not ask whether justices consider them­selves conflic­ted, but whether an outsider might reas­on­ably think they are. Would anyone begrudge a member of the public ques­tion­ing Justice Thomas’s alle­gi­ances in this case?

Second, a series of contro­ver­sies beyond this one make clear that there is a long and troub­ling record of justices enga­ging in conduct that has eroded the public’s trust. This includes partisan speeches, lavish gifts, and recusal fail­ures by members of the Supreme Court, includ­ing a recent New York Times story detail­ing Justice Thomas’s parti­cip­a­tion in events hosted by conser­vat­ive activ­ists. As the advocacy group Fix the Court has docu­mented, in recent years every one of the sitting justices has faced scru­tiny for purpor­ted ethical lapses.

A code of conduct isn’t a cure-all, but having one could allow for more detailed guid­ance on when justices’ recusal is required. This could include better defin­ing when a spouse has an “interest” in a case and clari­fy­ing that poten­tial conflicts should be viewed not from the justice’s perspect­ive but from the public’s.

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A code could also set up other guard­rails to help restore public confid­ence in the Court, includ­ing address­ing when and how justices can parti­cip­ate in events with prom­in­ent politi­cians or other polit­ical figures — a common prac­tice, and one that research suggests the public views as inap­pro­pri­ate. The justices are the only nine judges in the United States who do not currently have to follow an ethics code.

A number of bills, sponsored by both Demo­crats and Repub­lic­ans, have sought to require a code of conduct for the Supreme Court. Crit­ic­ally, however, the Court does­n’t have to wait for Congress to act. The justices can — and should — adopt a code of conduct on their own to provide guid­ance, trans­par­ency, and account­ab­il­ity regard­ing ethical bound­ar­ies.

The Court must also require justices to explain their recusal decisions in writ­ing, allow­ing the public to assess for them­selves a justice’s explan­a­tion of why they are sitting on a case in which they have a seem­ingly obvi­ous conflict of interest.

Public trust in the Supreme Court is at an all-time low. Only 16 percent of adults say that the justices do a good or excel­lent job of keep­ing their own polit­ical views out of their decisions, accord­ing to a Janu­ary survey by the Pew Research Center. Yet this trust — and the public’s expect­a­tion that the Supreme Court’s decisions be followed — are the Court’s primary sources of author­ity.

Justice Thomas’s fail­ure to recuse reflects less a gap in the law than a lack of tools for hold­ing justices to it. A code of conduct and public explan­a­tions won’t solve the Court’s legit­im­acy crisis, but they would set expect­a­tions for the justices’ beha­vior. Clear stand­ards — and the accom­pa­ny­ing added public scru­tiny — would provide an incent­ive for judges to live up to them. It is urgent that either the Court or Congress put those tools in place.

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