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Thomas Focus May Sink Democrats’ Supreme Court Ethics Push

April 13, 2022, 8:45 AM

Ginni Thomas’s texts to a Trump White House official reinvigorated congressional Democrats’ calls to hold the Supreme Court to a code of ethics but tying it to her husband, Justice Clarence Thomas, may make it harder to pass.

The focus on Thomas, one of the most conservative justices, and his activist wife would complicate efforts by majority Democrats to reach a 60-vote threshold in the Senate. Thomas has faced some calls to recuse from cases involving the Jan. 6 Capitol attack after revelations that his wife was urging Trump aides to challenge President Joe Biden’s election win.

Gabe Roth, executive director of courts watchdog group Fix the Court, which advocates for applying ethics rules to the Supreme Court, noted that there has been bipartisan interest in Supreme Court ethics in the past, but said he worries focusing on a single justice that “brings out partisan fervor may not lead to the desired outcome.”

Pressure from Congress could still prompt the judiciary to act on ethics, though recent history suggests the result may fall short of what lawmakers have in mind.

Renewed Efforts

Supreme Court ethics came under increased scrutiny after revelations last month that Ginni Thomas pushed former President Donald Trump’s chief of staff to do more to overturn his loss to Biden. Justices, unlike other federal judges, don’t have an ethical code of conduct.

In response, Rep. Hank Johnson (D-Ga.) and Sen. Sheldon Whitehouse (D-R.I.) who chair each chamber’s courts-focused subcommittee, reintroduced bills (H.R. 7426; S. 4010) that would require the Supreme Court to create its own code of conduct within 180 days of enactment.

The legislation would “finally hold judges and justices accountable to rigorous enforceable ethics standards. Yes, even Justice Thomas,” said Rep. Mondaire Jones (D-N.Y.), a cosponsor of the House bill.

Senate Judiciary Chair Richard Durbin (D-Ill.) said the issue is a priority and he and Whitehouse are planning a hearing on Supreme Court ethics when lawmakers return from their two-week recess.

Lindsey Graham (R-S.C.) said he is working with Whitehouse and could see himself supporting such legislation. “We’re all in public office here, so I think that’s something for us to visit,” Graham said.

But finding support among other Republican senators could prove difficult. “I wouldn’t legislate a code of ethics for a co-equal branch of government like the judiciary,” said Sen. John Cornyn (R-Texas), who serves on the Senate Judiciary Committee.

At an event Tuesday in Kentucky, Senate Minority Leader Mitch McConnell (R-Ky.) said, “I think they understand the conflict when they see it. And I have confidence in Justice Thomas and the other eight justices to make the decision on whether to recuse.”

Thomas Focus

The focus on Thomas and his wife could complicate efforts to win over additional Republicans. If Democrats all held together, they’d need 10 GOP votes in the bitterly divided Senate to move a bill forward.

With conservatives occupying six seats on the court, Republicans aren’t as concerned about the issue, said Maya Sen, a political science professor at Harvard who studies the judiciary. They’re more likely to view a code of ethics as a restriction that “would serve to sort of reduce the power of that six-member supermajority,” Sen said.

Sen. Chris Murphy (D-Conn.), who sponsors one Supreme Court ethics proposal (S. 2512), tried appealing to Republicans in a March 31 floor speech, by tying his bill to Ketanji Brown Jackson’s nomination to the court.

“A strange thing is going to happen when Judge Jackson finally takes her seat on the Supreme Court. She will, after all of this review and scrutiny, become effectively immune from ethics standards,” Murphy said.

Republicans have supported an ethics code for justices in the past.

A 2018 bill introduced by Rep. Darrell Issa (R-Calif.) would have required the judiciary’s policymaking arm to issue a code of conduct that applied to the justices. The House Judiciary Committee approved that bill by voice vote, though it didn’t advance further.

Co-Equal Branches

The ethics bill is just one of several pieces of legislation aimed at the judiciary pending in Congress. Lawmakers want to make judges’ financial disclosures publicly available, add civil rights protections for judiciary workers, and make court documents free to the public.

Legislation (S. 3059; H.R. 5720) that would require courts to post financial disclosures to a searchable online database attracted bipartisan support after the Wall Street Journal reported 131 federal judges heard cases involving companies in which they or a family member held stock.

The House and Senate have passed slightly different versions of the financial disclosure bill and must sort out the differences before sending it to Biden for his signature.

The judiciary frequently resists congressional efforts to intervene in how it operates, arguing that the third branch is best positioned to come up with its own solutions.

“The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government,” Chief Justice John Roberts wrote in his 2021 year-end report.

Some academics argue Congress can’t impose ethics requirements on the justices. Requiring the Supreme Court to adopt an ethics code would “run afoul” of the Constitution and the framer’s intent for separation of powers, University of Illinois Chicago law professor Kevin Hopkins said in 2013.

Acting Independently

Recent experience suggests congressional pressure could prompt the judiciary to propose its own changes.

When the judiciary faced accusations of sexual misconduct amid the #MeToo movement, the courts responded by updating the codes of conduct for lower court judges and adding new systems for fielding employee complaints.

“The leadership of the judiciary thought that it had done a lot to respond,” Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal district judge, said. But from the outside perspective, members of Congress, the public, media, and victims saw the changes as ineffective, Fogel said.

“Not everyone in the judiciary understands that their good intentions and efforts to do things in a more thoughtful way don’t eliminate the need to be aware of public perception,” Fogel said.

The judiciary similarly approved its own plan to make financial disclosures more readily available after legislation passed both chambers. That plan would make disclosures available more quickly on demand but stops short of creating the public database lawmakers want.

“I would argue that some of these half-measures are worse than doing nothing at all,” Roth said. “Because it just gives the fog of progress, but it’s not actual progress.”

—With assistance from Laura Litvan and Nancy Ognanovich

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

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

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