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Where Ginni Thomas’s Texts Meet High-Court Ethics: Explained (1)

March 30, 2022, 8:42 AMUpdated: March 30, 2022, 6:17 PM

Clarence Thomas faces Democratic calls to recuse himself or resign over his wife’s connection to efforts to undermine the 2020 election results that’s raising questions about the Republican-appointed justice’s participation in cases involving the issue.

A few congressional Democrats even suggest that the decision by the court’s most senior associate justice, who has served since 1991, to participate in cases related to the election challenges might be grounds for impeachment.

What follows is an explanation of the criticism of Thomas and the ethics and recusal rules that govern the justices.

What’s Causing the Controversy?

Thomas’ wife, Virginia “Ginni” Thomas, is a longtime conservative activist. It turns out that she supported challenges to the 2020 election that tried to keep Democratic President Joe Biden from taking office after he defeated Republican incumbent Donald Trump.

Last week, CBS News and the Washington Post reported she exchanged a series of texts with Trump White House chief of staff Mark Meadows, in which she encouraged him to aggressively pursue the unfounded election challenges while pressing conspiracy theories.

The texts don’t explicitly mention her husband or the Supreme Court. But Justice Thomas later ruled on election challenges to keep records from the House committee investigating the Jan. 6 Capitol insurrection. He was the lone dissenter in the 8-1 action in January 2022 rejecting the attempt to keep records from the committee.

What Ethics Rules Govern Justices?

Unlike other federal judges, Supreme Court justices don’t have an ethical code of conduct.

That doesn’t mean they’re allowed to act unethically, at least in theory. Federal law 28 U.S.C. 455 requires any “justice, judge, or magistrate” to decline to hear matters in which their “impartiality might reasonably be questioned.”

Judicial ethics expert Arthur Hellman, law professor emeritus at the University of Pittsburgh, said “it is regrettable that the justices have not adopted a code of conduct, but it is important for everybody to understand that what is probably the most important set of ethical rules, the disqualification rules, do apply to the Supreme Court.”

Chief Justice John Roberts suggested in his 2011 year-end report that Congress may lack the authority to bind the judiciary, as a separate branch of government. Nevertheless, Roberts said the justices “follow the same general principles respecting recusal as other federal judges.” But Roberts noted that “the application of those principles can differ due to the unique circumstances of the Supreme Court.”

There’s no court above the justices to keep them in check. As the late Justice Antonin Scalia wrote in a memorandum detailing why he refused to recuse in a case involving then-Vice President Dick Cheney, a justice’s recusal risks an evenly divided court since there’s no one to replace them as is the case on a lower court.

What Can Congress Do?

Democratic lawmakers are demanding an explanation from Thomas about his failure to recuse. Senate Majority Leader Chuck Schumer (D-N.Y.) is among lawmakers calling on him to sit out cases involving the Jan 6. insurrection. “There’s enough evidence already I believe that he should recuse himself,” Schumer said Tuesday.

Senate Minority Leader Mitch McConnell (R-Ky.) said in a floor speech Wednesday that the effort against Thomas was part of “the left’s quest to de-legitimize the Supreme Court.”

“It’s a coordinated effort to nullify the presence of Justice Clarence Thomas on the Court,” McConnell said.

Other Democrats are calling on Roberts to create an ethics code. Justice Elena Kagan told lawmakers in 2019 that Roberts was studying whether to introduce a code of conduct for the justices, but the court hasn’t adopted one.

House and Senate Democrats had already introduced legislation (S. 2512; H.R. 4766) that would direct the judiciary’s policymaking body, the Judicial Conference, to create a code that applies to the justices. Without Republican support, that proposal might not go anywhere.

Is Impeachment Possible?

One justice has been impeached before. That was in the early 1800s and Samuel Chase wasn’t convicted. At this point, it’s unlikely Thomas becomes the second.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) suggested Thomas’ failure to recuse “could serve as grounds for impeachment” in a tweet Tuesday. But few other Democrats have gone that far, and they’d be unlikely to succeed at this point even if they wanted to pursue an impeachment.

Two-thirds of the evenly divided Senate would need to vote to convict if the House impeaches him and Democrats could expect little support from Republicans.

“Members of Congress will likely break along partisan lines over such issues as whether the justice engaged in any misconduct and, if so, whether any such misconduct is impeachable,” said Michael Gerhardt, a University of North Carolina law professor who testified during both the Bill Clinton and Donald Trump impeachment proceedings.

Pursuing an impeachment risks ripping “the court apart” and could lead to greater scrutiny of other justices’ decisions not to recuse, said Joshua Kastenberg, author the 2019 book “The Campaign to Impeach Justice William O. Douglas: Nixon, Vietnam, and the Conservative Attack on Judicial Independence.”

“It would be a whole parade of whataboutisms,” said Kastenberg, a University of New Mexico law professor. “It would get ugly.”

-With assistance from Madison Alder and Kimberly Strawbridge Robinson

(Adds McConnell remarks. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com