By Joan Biskupic, CNN legal analyst & Supreme Court biographer
New revelations of efforts by conservative activist Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to reverse the 2020 election results cast harsh light on the justices’ opaque process for dealing with conflicts of interest and their lack of a formal code of conduct.
Chief Justice John Roberts has adopted a posture of “trust us” through the years, although other justices have suggested an internal debate has occurred over whether the court should be covered by a formal code of ethics.
Three years ago this month, Justice Elena Kagan told a House committee that Roberts was considering whether to adopt a conduct code applicable to the justices.
“It’s something that is being thought very seriously about,” Kagan said at the time.
But nothing apparently came of that and since then, controversies undermining public confidence in the justices’ activities have only mounted. The latest related to Ginni Thomas arise as a new conservative 6-3 majority, solidified by the addition of three appointees of former President Donald Trump, is rolling back constitutional protections, most notably on abortion and voting rights.
Justice Thomas, on the bench since 1991, is now helping steer the transformed court.
Vividly on display this week was also the politically charged Supreme Court confirmation process, as President Joe Biden’s choice of federal appellate Judge Ketanji Brown Jackson endured partisan distortions of her judicial record and off-bench activities. If confirmed, she would be the nation’s first Black female justice in the 233-year history of the court.
Developments on Thursday has renewed calls for clearer rules and greater transparency concerning when justices should disqualify from cases.
It is now known that the House select committee investigating the January 6 deadly rampage at the Capitol has gathered text messages between Ginni Thomas and then-Trump White House chief of staff Mark Meadows showing Ginni Thomas pleading with him to fight to overturn the election results.
She offered thoughts regarding legal strategy, including the use of attorney Sidney Powell, and in one November 10, 2020, text wrote, “Help This Great President stand firm, Mark!!! … You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
Justice Thomas participated in Supreme Court cases related to 2020 election controversies, and in one February 2021 opinion, dissented as the full court declined to take up a challenge to Pennsylvania mail-in voting procedures. He demonstrated support for the claim that election fraud is a threat to America.
“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort,” he wrote. “An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.” No other justice joined his opinion.
This past January, Justice Thomas dissented alone as the court allowed the National Archives to release to the January 6 committee thousands of documents from the Trump White House, over the former President’s attempt to assert executive privilege.
A source connected to the January 6 committee told CNN the newly revealed text messages between Ginni Thomas and Meadows were part of a trove of documents Meadows voluntarily gave the committee when he was briefly cooperating with its investigation. The documents involved in the National Archives dispute that went to the Supreme Court were part of a separate tranche.
After initially endorsing Ted Cruz as a candidate early in the 2016 cycle, Ginni Thomas became a Trump loyalist. But the disclosure of the text messages reveals a closer connection to Trump’s attempts to overthrow the 2020 election results through legal efforts that could have culminated at the Supreme Court.
Supreme Court makes its own rules
The Code of Conduct for United States Judges provides ethical guidance for lower court judges but specifically does not cover justices. Roberts has said the nine consult that aspirational code in their own behavior.
Separately and more relevant to the Thomas controversy, a portion of federal law requires justices and judges to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.” That rule, under which all judges and justices fall, also requires disqualification if a spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
As a general matter, the nine justices decline to explain themselves in the rare instances that they sit out a case.
The most common recusals come when a justice has had a hand in an earlier stage of a case, such as when Kagan, a former US solicitor general who joined the bench in 2010, sat out disputes on which she had earlier worked as an administration lawyer.
During this week’s confirmation hearings, Jackson told senators she would, if confirmed, disqualify herself from a pending dispute over Harvard’s race-based affirmative action practices because she has been a member of Harvard’s Board of Overseers.
Roberts has declined to address the broader topic in recent years but in 2011 said he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.”
In a 2011 year-end report addressing ethical standards, Roberts said the court “does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.” Roberts contended that recusal dilemmas differ for members of the high court, compared with lower court judges.
“Lower court judges can freely substitute for one another,” Roberts wrote. “If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
He said judges should not be swayed by public clamor or partisan demands. Under the Constitution, justices can be removed from office only through impeachment by the House and conviction by the Senate (the same process that applies to a president). Conviction of a justice has never occurred, and only one member of the high court has ever resigned under threat of impeachment, Abe Fortas in 1969.
Supreme Court officials did not respond Friday to CNN requests for comment regarding justices’ ethics rules or the new reports involving Justice Thomas’ wife.
As a general matter, the court says little about these extracurricular activities — a pattern that has led to more questions about its institutional integrity.
“The court should be concerned with its own legitimacy and if it’s not, Congress may have to step in, at least in terms of enforcement of basic judicial ethics,” Russell Wheeler, a visiting fellow at the Brookings Institution and former deputy director of the Federal Judicial Center, said Friday.
But Wheeler, who testified last year before the Presidential Commission on the Supreme Court, cautioned that any congressional oversight of judicial ethics can present thorny issues related to judicial independence.
“Congress has a role in regulating judicial conduct, but it has to balance the demands of accountability with the need for independent judicial decision-making.”
Of the latest revelations regarding Ginni Thomas, Wheeler said, “It’s not misconduct for any judge to have a spouse who is deeply embedded in highly controversial, even outlandish, political activity. But what is Justice Thomas’ responsibility when appeals related the 2020 election or to January 6 rioters find their way to the Supreme Court? At the very least, there’s an appearance problem.”
This story has been updated with additional details.
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CNN’s Ryan Nobles contributed to this report.