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Are Justice Thomas and Judge Jackson Opposites On Recusals? (1)

April 1, 2022, 3:56 PMUpdated: April 1, 2022, 11:52 PM

Something tells me that Clarence Thomas and Ketanji Brown Jackson won’t be BFFs on the U.S. Supreme Court. No Ruth and Nino are they.

I know it’s early in the game so perhaps Thomas and Jackson will bond over Wordle or gardening. But right now I can’t imagine what they will have in common. Just look at the way they’re dealing with recusal.

After news spilled out that Thomas’s wife Ginni urged Donald Trump’s chief of staff Mark Meadows to do whatever it takes to overturn the 2020 presidential election (“Help This Great President stand firm, Mark!!!” she texted after the election, adding, “Release the Kraken.”), Thomas faced pressure to recuse himself from cases involving the election and Jan. 6.

So far, Thomas shows no signs that he’s relenting. He had no qualms about participating in the high court case over the release Trump White House records, even though we now know that Ginni was actively advocating to overturn the election. (The Supreme Court ruled 8 to 1 against Trump in January. And yes, Thomas was the dissenter.)

Meanwhile, Jackson has already pledged to recuse herself from the Harvard College affirmative action case that’s before the high court. She did so during her confirmation hearings as soon as Sen. Ted Cruz raised the issue.

While Thomas is running roughshod over ethics concerns like a Russian oligarch, the future justice is diligently following the rules like a Girl Scout trying to earn her next merit badge.

The fact is, there are no clear lines on ethics for justices on the nation’s loftiest court.

“The Supreme Court is the only court in the nation—state or federal—that operates without a formal code of ethics,” said Renee Knake Jefferson, who teaches ethics at the University of Houston Law Center. “Although a federal statute requires that a justice must disqualify herself in any matter where ‘impartiality might reasonably be questioned,’ little guidance exists about what circumstances fall under that phrase. Ultimately, a Supreme Court justice’s decision to recuse is subject to that justice’s unilateral choice, which no one can challenge.”

In other words, Supreme Court justices are like gods on Mount Olympus who can flout ethical rules with near impunity. (If you want to be disheartened, check out fixthecourt.com, which keeps a running tab on the times justices refused to recuse despite apparent conflicts of interests.)

So should we just accept the fact that Thomas has almost infinite discretion about recusals? And was it overkill for Jackson to bow out on a case that will likely decide the future of affirmative action?

“Jackson should recuse in the Harvard case,” said Duke Law School ethics professor Kathryn Bradley, a former clerk to Justice Byron White. Bradley said that Jackson’s service on the Harvard Board of Overseers invites speculation about whether she “had a hand in creating or at least knew details about the admissions policy” or how much she knew about the Harvard litigation. But even in the absence of evidence of such involvement, “avoiding the appearance of impropriety is reason to recuse,” Bradley added.

But that lack of evidence is precisely why Jackson shouldn’t have to recuse, NYU Law School ethics guru Stephen Gillers said. “If the only basis to recuse was membership on the Board of Overseers, which has no role in admission decisions and does not advise on admissions policies—as I’ve been told and have not seen a contrary claim— she did not have to recuse,” Gillers wrote in an email to me.

As for Thomas, Gillers and others have no shortage of opprobrium for his disregard of ethics issues. Until the plethora of communications (29 messages) came out between Ginni Thomas and Meadows, Gillers told The New Yorker, “I was prepared to, and did tolerate a great deal of Ginni’s political activism . . .But Ginni crossed the line.” Bradley adds that it strains credulity that Thomas was in the dark about his wife’s activities: “Thomas has said that she’s his best friend. I’m going to presume she’s talked to him about these issues.”

George Washington Law professor Jonathan Turley, however, has a different take. While he feels strongly that Jackson had to recuse (he calls her Harvard board service, “an insurmountable conflict”), he’s not so sure about Thomas.

Although he admitted, “there was a legitimate question of recusal” about Thomas participation in the January decision on the release of White House records, Turley told me in an email: “I disagree that he is compelled to recuse himself from any election or commission related case absent some new information.” He added that Thomas’s conflict arose from “his wife’s political advocacy, not his own actions or activities.”

Writing in The Hill, Turley also hones in on President Joe Biden’s announcement of his intention to put a Black woman on the high court. Turley wrote: “The college admissions cases before the court have been much discussed since President Biden announced that he would consider only black females for the next vacancy on the court. Some of us immediately noted that Biden’s exclusionary criteria have been declared unconstitutional or unlawful by the court for schools and businesses; they also are unprecedented, unnecessary, and unfair to potential nominees. To make matters even more awkward, the new justice would sit on two cases raising the use of race in admissions to Harvard and the University of North Carolina.”

By that same logic, shouldn’t Amy Coney Barrett also recuse herself in cases that affect women’s rights, including abortion, since Trump made it clear he wanted a female candidate to replace Ruth Bader Ginsburg?

(In an email Turley sent to me after an earlier version of this column published, he stated that he does not “believe that President Biden’s criteria presents a judicial ethical barrier to hearing any case on the docket.”)

Turley’s reasoning seems a bit tortuous—holding Jackson to a strict standard while giving Thomas wiggle room.

In the meantime, Jackson is abiding by her own strict standard—which is consistent with her history on the federal bench. The Harvard Crimson notes, based on her Senate questionnaire, that Jackson recused herself from 12 cases, including two involving her role on the Harvard board, as an appellate federal judge.

Jackson’s approach might be exemplary, yet I can’t help but ask this nagging question: Is her recusal on the Harvard case another example of liberals making a high minded moral statement by shooting themselves in the foot?

“I don’t think so because it goes to the legitimacy of the court,” says Bradley, adding, “though it will take a lot to restore it.”

Not that any of this will matter in the case’s resolution. The reality is that her vote won’t change the result—which will likely signal the beginning of the end of affirmative action—given the conservative tilt of the Supreme Court.

It’s just disappointing—and deeply ironic—that in what might be one of the most consequential rulings on race and education, the first Black woman on the Supreme Court will be silent.

(Updated to clarify Jonathan Turley's comments.)

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

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