Legal ethics experts agree: Justice Thomas must recuse in insurrection cases

The ruling could well end up before the Supreme Court, providing yet another instance in which Justice Thomas will have to face a recusal decision.

Texts muddy the water

The modern day code of judicial conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Mrs. Thomas is an outspoken conservative activist, her husband is able to act as an independent judge on matters that come before the court, even matters that may touch on subjects of interest to Mrs. Thomas.

But in the aftermath of the 2020 election, while Ginni Thomas was actively strategizing with the White House chief of staff on overturning the election results, Justice Thomas repeatedly participated in cases that came to the court directly or indirectly involving those election results.

One of these was the court’s decision in January, requiring that Donald Trump’s White House records to be turned over to the House Committee investigating the Jan. 6 riot at the U.S. Capitol. Only one justice disagreed: Clarence Thomas.

Ginni Thomas’s newly released texts and her husband’s failure to recuse himself in the congressional subpoena case have pulled the couple into an ethics vortex.

Judicial ethics experts weigh in

“The subpoena of documents when his wife’s own texts are among the pile of documents responsive to the subpoena. That’s a slam dunk,” says Richard Painter, who served as ethics counsel for the George W. Bush White House. “He had to recuse. He didn’t. I’d want to know why,” he continued.

NYU law professor Stephen Gillers, author of a leading text on judicial ethics, agrees. “It was his obligation as a justice under the recusal statute to ensure that nothing she had been doing warranted his recusal,” he says, adding that Justice Thomas “could not maintain a kind of false ignorance, closing his eyes and ears.”

Why didn’t Thomas recuse? James Alfini, dean emeritus of South Texas College of Law, and also a judicial ethics expert, speculates that Thomas “didn’t want to embarrass his wife” or himself for that matter.

Each of these experts on judicial ethics previously argued that Ginni Thomas’s political life did not create a conflict of interest requiring Justice Thomas to recuse. But this time, they all agree that Mrs. Thomas crossed the line, and so very likely did her husband in not recusing himself from cases that came to the court involving election challenges brought by Trump and his allies.

Supreme Court justices aren’t covered by ethics rules

“I think this is different,” says Charles Geyh, a legal ethics professor at the University of Indiana in Bloomington. “There’s a difference between having a spouse who has an active interest” in seeing the law changed and “someone who is actually part of the story” of the case, he explained. “I don’t know how someone could be impartial when their spouse is part of the record that may be before the judge.”

Geyh notes that the federal recusal statute requires a judge to step aside when he or she has knowledge of disputed facts in the case, and Ginni Thomas’s texts were part of the larger factual record that was produced pursuant to the January 6 Committee’s subpoena.

Former Bush ethics adviser Painter, who is now an ethics professor at the University of Minnesota, is blunter: “He should make it clear that he’s going to recuse from all of these Jan. 6 cases at this point.”

There is, however, no way to force Justice Thomas to do that. The Supreme Court has made clear it considers the judicial code of conduct as guidance that it tries to follow, but is not obligated to do so. It is different from other courts because it is a court of nine. Unlike the lower federal courts, where there are lots of other judges to step in when a judge is recused, nobody can substitute for a recused Supreme Court justice; a tie vote leaves the case unresolved, and unnecessary recusals may undermine the interests of justice.

Moreover, under longstanding practice, each justice decides for him or herself when to recuse.

Few real options

So, what is the remedy if a judge goes rogue? The constitution provides for just one remedy: impeachment. But that would be “a folly,” says Professor Alfini. Only one justice has ever been impeached, and he was subsequently acquitted.

What’s more, as Professor Geyh notes, “Judges make innocent mistakes all the time,” and they get reversed on appeal. “The only time they get disciplined” is “if they willfully failed to disqualify” in violation of the judicial code of conduct.

The fact is that there are some 25,000 judicial officers in the country, just nine of whom are not subject to the code of conduct, and those nine, Geyh observes are “the most powerful judges in the country, if not the planet.”

The Clarence Thomas recusal conundrum is the most vivid example of a court that has neither a system of accountability nor a system of transparency when it comes to recusal. There is no requirement for justices to disclose why they are recusing, nor is there a requirement that they provide an explanation on the rare occasion when one side in a case formally requests recusal and the justice declines to recuse.

The Thomas recusal matter, though, appears to have arisen at just the wrong time for the court. It comes at a time when justices have been desperately trying to persuade the public that the court is not a partisan institution.

As Professor Geyh observes, justices are going on an “I am not a political hack tour,” at the same time that Thomas is “part of the problem he is being called upon to resolve as a justice,” all of which provides for “uniquely bad optics.” Indeed, public opinion surveys indicate that approval of the court has dropped precipitously, from 68% approval in a 2019 Annenberg survey to 40% in a Gallup poll last fall.

Legal ethics experts seem to agree that now is the time for the court to write its own ethics rules. If the justices did that, they could create a mechanism for a justice who is unsure about recusal to submit the question to the other members of the court. It may not be an ideal solution, but neither is the status quo.