By Joan Biskupic, CNN legal analyst & Supreme Court biographer
Chief Justice John Roberts has long trumpeted the Supreme Court’s institutional integrity, saying the nine justices differ from elected politicians and calling out anyone who threatens to undermine that message.
He has rebuked former President Donald Trump and members of Congress. But now the threat comes from within, and Roberts faces a dilemma. The chief justice is not the boss of Justice Clarence Thomas or any of the associate justices.
Each decides when to recuse himself or herself from a case and no internal process exists to sanction a justice’s failure to sit out a case. When recusal occurs, rarely is a reason made public.
Further, Thomas’ stature has been enhanced in recent years by the new conservative appointees. He enjoys a personal loyalty among the right wing that has eluded Roberts.
Thomas is now fueling an ethics controversy affecting the reputation of the entire court. He did not recuse himself from cases involving the 2020 election and January 6, 2021, rampage at the Capitol, although — it has since emerged — his wife, Ginni, was strategizing with the Trump White House to reverse the election results.
This latest twist in the January 6 investigation has highlighted the justices’ lack of transparency regarding recusals and their vague ethical standards. An emotional week of Senate hearings for Judge Ketanji Brown Jackson to succeed retiring Justice Stephen Breyer brought questions about the court’s stature into the spotlight.
The Thomas controversy also arises as the justices are roiled behind the scenes on cases over abortion rights and gun control. They have increasingly let animosities toward one another spill out in opinions. Decisions expected through the end of the current session, in late June, will inevitably split the country and deepen concerns about the court’s integrity.
Roberts has been part of the rightward shift of the Supreme Court, yet he has been intensely concerned about the court’s institutional reputation and has tried to slow the conservative juggernaut. He is likely to want to generate as much public confidence as possible as the session closes.
He has labored since his 2005 appointment, and especially during the Trump tenure, to separate the bench from politics. Yet he appears destined to be entangled with the former President, especially in the aftermath of Trump’s attempts to steal the election and of January 6.
In this new situation involving a fellow justice, there clearly is some expectation from congressional Democrats that Roberts can — and will — act.
“I think Chief Justice Roberts ought to demand a public explanation from Justice Thomas, and he must absolutely recuse himself,” Sen. Richard Blumenthal, a Democrat from Connecticut, said on Monday.
Any action would surely inspire Thomas’ own political constituency, who have celebrated his consistent 30 years of conservative opinions and believe he should be a model for other justices.
“Justice Thomas is a great American and an outstanding Justice. I have total confidence in his brilliance and impartiality in every aspect of the work of the Court,” Senate Minority Leader Mitch McConnell, a Kentucky Republican, said in a statement last week.
Roberts, by contrast, lacks such support from leading Republicans. His 2012 vote to uphold Obamacare and other moves toward the middle of the bench have engendered distrust among partisans on the right.
Limits on Roberts’ power
Despite his elevated title, Roberts has little real authority with his colleagues. He controls the assignment power of cases when he is in the majority and oversees the running of the building. But each justice is appointed for life and can be removed only through impeachment.
In 2011, as he broadly addressed potential recusals, Roberts said he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.”
Ginni Thomas’ activities, however, represent a wholly new order of business. They were tied to litigation efforts to upend the 2020 election. Trump’s game plan was to reach the Supreme Court.
Text messages obtained by CNN show that Ginni Thomas pleaded with then-Trump White House chief of staff Mark Meadows to fight to overturn the election results. She offered suggestions for legal strategy and in one November text after the election told Meadows, “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.”
Clarence Thomas voted in cases arising from the 2020 election. He also stood out in one February 2021 opinion as he expressed support, writing alone, for the claim that election fraud is a threat to America. In January 2022, he was alone again in publicly dissenting from the majority’s decision to let the National Archives release Trump White House documents — including those involving Meadows — to the House January 6 committee, over the former President’s attempt to assert executive privilege.
Ginni Thomas has acknowledged attending the Trump rally on January 6 before Trump demonstrators marched toward the US Capitol. She said she had gone home early and was not with the Capitol rioters.
She has declined to comment on the recent text-message revelations. Neither Clarence Thomas nor Roberts responded to CNN requests for comment.
While Roberts has no control over his colleagues, he would presumably have some moral authority inside the court. He might, if so inclined, privately approach Thomas to discuss ways to ensure public confidence in his recusal decisions.
Roberts might also try to persuade his colleagues to adopt a formal ethics code for the high court. Justice Elena Kagan told a House committee in March 2019 that Roberts was considering such action. But the matter faded after that.
The chief justice has said they generally abide by the ethics code that covers lower court judges. Separately, the justices are bound by a federal law that says they should disqualify themselves from cases if their “impartiality might reasonably be questioned.”
Whether that law could ever be enforced against the justices has never been tested.
As an internal matter, Roberts said the justices do not “sit in judgment” of individual decisions whether to recuse in a case.
Scalia and Cheney’s duck hunting adventure
That was the posture of Roberts’ predecessor in a 2004 episode, when Justice Antonin Scalia refused to disqualify himself from a case involving Vice President Dick Cheney after they had gone duck hunting together in Louisiana.
When Senate leaders asked Chief Justice William Rehnquist in a letter about the court’s recusal rules, Rehnquist wrote that “no formal procedure” exists for review of a justice’s recusal decision in an individual case. “This is because it has long been settled that each justice must decide such a question for himself,” Rehnquist added.
Today, it just so happens that Cheney’s daughter Rep. Liz Cheney, a Wyoming Republican, is vice chair of the January 6 committee.
Committee sources revealed this week that they will seek an interview with Ginni Thomas over the texts that show her asking Meadows to intensify the effort to block Biden’s victory.
The late Scalia, for his part in 2004, answered a specific recusal request in that case with a 21-page statement that declared, “Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse.” He said that as he and Cheney had hunted, they were “never in the same blind, and never discussed the case.”
He acknowledged that he had flown down to Louisiana on Air Force Two but said he’d had to take a costly return flight home and retorted, “If it is reasonable to think that a Supreme Court justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.”
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