By Tierney Sneed, CNN
Criticism of Justice Clarence Thomas’ refusal to recuse himself from a case involving White House January 6 records the Supreme Court considered this year has increased in the wake of recently revealed texts Thomas’ wife had sent about the bid to overturn the 2020 election.
Democrats are calling for ethics legislation that would apply to Supreme Court justices, who currently determine for themselves when disqualification from cases is required. The court has been mum on the controversy, which erupted after last week’s disclosure that Virginia “Ginni” Thomas had texted with then-White House chief of staff Mark Meadows about the efforts to reverse former President Donald Trump’s electoral loss.
The Supreme Court has already weighed in once on the House’s investigation into the insurrection, in a case where Thomas was the lone public dissenter from the court’s decision to greenlight the release of several Trump White House documents to House investigators. (The newly public Ginni Thomas texts were not obtained from that batch, but rather from the trove handed over to investigators voluntarily by Meadows. And there is no evidence that Clarence Thomas was aware of the text messages).
Other cases involving the insurrection could eventually land before the high court, but Thomas has given no indication that he’d step away from them, refusing to comment to CNN last week. Right now, it is up to the justices to decide individually whether a case poses a potential conflict that, under the law, requires their recusal.
Here’s what you need to know about how justices have typically treated recusal issues and where Thomas fits in that pattern:
When are justices required to recuse themselves from cases?
The Supreme Court is subject to the same statute mandating that all federal judges disqualify themselves from disputes where their “impartiality might reasonably be questioned.” The statute also spells out the types of financial conflicts requiring that judges step away from cases.
However, the justices do not use the same procedures that lower court judges follow to ensure compliance with the law. Whereas a lower court’s recusal decisions can be challenged by parties and reviewed by higher courts, no such accountability mechanism exists for the Supreme Court. There has also been little transparency around how justices are weighing these issues, as they do not typically explain why they have not participated in cases — leaving court observers guessing what may have prompted the recusals.
“The Supreme Court has really fallen down on the task,” court ethics expert Amanda Frost, an American University Washington College of Law professor, told CNN earlier this year. “They’ve gotten very used to not being transparent on many different issues on many different fronts.”
When have justices recused themselves in the past?
A review of court filings from the last few years shows that, of the thousands of petitions the justices receive annually seeking Supreme Court intervention, justices have recused themselves in about 150-200 of the matters each year.
Without any explanation from the justices, it’s not always clear what prompted the recusals.
There are usually about 10-20 petitions each year, according to Gabe Roth, executive director of Fix the Court, an organization that pushes for transparency revisions across the federal judiciary, where it seems that a justice has not participated because he or she has a financial stake in a company connected to the case. Justices report their stock holdings in financial disclosure forms released annually.
It also appears that justices’ involvement — in roles they had held before joining the high bench — in cases while the litigation was at an earlier stage has prompted recusals. Those types of recusals are spelled out by the statute as well. It’s not uncommon for Justice Elena Kagan to have had to recuse from a case, presumably because of the work she had done on it as US solicitor general.
Likewise, several justices have recused from cases they played a role in when they were lower court judges. For instance, then-Justice Anthony Kennedy recused from a case in 2018 because it had been before him in 1985, when he had been an appellate judge.
The pattern gets murkier, however, in cases where a family connection has prompted a justice to consider recusal. Justice Stephen Breyer will recuse in some cases previously heard by his brother, a federal judge in California, but not in others. Justice Brett Kavanaugh has sat out cases implicating the work his father did as a lobbyist for the cosmetic industry. However, Justice Amy Coney Barrett did not recuse in a climate change lawsuit against Shell Oil, the longtime employer of her father. Shell Oil was listed on the conflict list Barrett assembled when she was an appellate judge; such lists are used by the case assignment software employed in lower courts to direct cases away from judges who might have potential conflicts.
Ethics experts say there are legitimate reasons for Supreme Court justices to take a narrower approach to potential conflicts than lower court judges, as there are only nine of them and they are the last stop for the most important legal questions in the country.
“If you’re a lower court judge, you should have a broader recusal list, theoretically because you’re more fungible at that level, you can be replaced,” Roth told CNN earlier this year.
When has Thomas recused himself?
Thomas’ own recusal record is sparse. Court records from his time on the bench through 2020 show 32 matters in which he indicated he was not participating, according to a review of the records by Roth. Notably, one of those recusals was in a 1995 case challenging the all-male admissions policy of Virginia Military Institute, which Thomas’ son attended at the time.
Thomas has also had to amend financial disclosures to correct omissions about his wife’s employment. He said in 2011 that the omissions were inadvertent and “due to a misunderstanding of the filing instructions.”
Roth said earlier this year that there is no historical parallel to the ethics questions now being raised by the conduct of Ginni Thomas.
“No spouse, to my knowledge, has ever actively lobbied other branches of government in the public sphere on issues before the justices like Ginni Thomas has,” Roth said.
Should Thomas have recused from the Jan. 6 case the court already considered?
Whether Thomas already violated ethics norms by participating in case concerning January 6 is a subject of current debate. Among his defenders is Michael Davis, the president of the conservative Article III project and a former chief counsel for nominations at the Senate Judiciary Committee.
“It’s entirely unclear what the ethical charge even is,” Davis told CNN, while calling the demands that Thomas recuse from January 6-adjacent cases “frivolous and laughable.”
“Ginni Thomas wasn’t running for president or vice president and she wasn’t employed by the Trump administration,” Davis said. “There was no personal interest for either Justice Thomas or Ginni that would trigger any ethical issue.”
Republicans in Congress also see no cause for concern. Senate Minority Whip John Thune of South Dakota said he was “confident that Justice Thomas would act in an impartial way,” while Sen. Thom Tillis of North Carolina — who sits on the Judiciary Committee — also defended Thomas’ participation in January 6-related cases.
“It’d be like your credibility as a reporter being undermined by your significant others’ comments on Twitter,” Tillis said.
The dispute in question was Trump’s request that the court block the National Archives from turning over certain White House documents being sought by the House January 6 committee. Thomas was the only justice to say publicly that he disagreed with a January court move to clear the documents’ release.
For Democrats, the new revelations about Ginni Thomas’ connection to the Trump election-reversal scheme are at best “troubling,” and several have gone farther, by arguing that Clarence Thomas should disqualify himself from cases involving the Capitol breach or Trump’s attempts to subvert the election.
Several court ethics experts agreed, pointing out that — even if Ginni Thomas’ texts weren’t among the documents in play in the January dispute — her communications with Meadows made her part of the campaign to overturn President Joe Biden’s 2020 win.
“That effort envisioned Supreme Court appeals as a possible strategy and in fact there were such appeals, in which Clarence Thomas participated,” Stephen Gillers, an ethics scholar at New York University School of Law, told CNN. “She chose to become part of the ‘Stop the Steal’ effort.”
What can Congress do?
Some Democrats are already advocating that Congress take a more official step to put itself in the debate.
“We need ethics legislation,” Sen. Elizabeth Warren of Massachusetts said Tuesday, later adding, “And those are ethics rules, for example, on not owning or investing in stocks that they are ruling on, and ethics rules about other kinds of personal conflicts.”
Others are going farther, like Rep. Alexandria Ocasio-Cortez of New York, who is pushing for impeachment proceedings for Thomas if he refuses to resign from the court. Rep. Hank Johnson of Georgia, who chairs the House Judiciary subcommittee that oversees the courts, also is calling for Thomas to resign.
Senate Judiciary Chairman Dick Durbin of Illinois said Tuesday that ethics legislation for the Supreme Court is “long overdue,” but he cautioned that any investigation of Thomas by his committee would have to wait until after the Easter recess. Easter is the deadline Democrats have set for themselves to confirm Supreme Court nominee Ketanji Brown Jackson.
House Democratic Caucus Chair Hakeem Jeffries of New York said it was his hope that “it will be explored by the Judiciary Committee in terms of its areas of jurisdiction related to ethical conduct by Supreme Court justices.”
“We have three separate and co-equal branches of government, and we need to look at the dynamics that were revealed by the communications between Mrs. Thomas and former White House chief of staff,” said Jeffries, a member of the House Judiciary Committee.
Some legal scholars, however, believe that — impeachment aside — there may be some limits on how Congress can legislate on this issue. Some scholars have suggested there may be constitutional constraints on Congress’ ability to regulate the US Supreme Court — a debate that Chief Justice John Roberts nodded to in 2011 in a year-end note implicitly pushing back against calls for legislation implementing a Supreme Court code of conduct.
“Congress may lack precise tools to induce recalcitrant Justices to behave ethically,” a 2019 Congressional Research Service analysis concluded. “That said, promulgating an ethical code for the Supreme Court could nonetheless establish norms for proper judicial behavior that guide the Justices’ actions.”
CORRECTION: An earlier version of this story misstated the year that Kennedy was involved in a case as an appellate judge that he later recused himself from as a Supreme Court justice. The case had been before him in 1985.
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CNN’s Kristin Wilson, Morgan Rimmer, Manu Raju, Ariane de Vogue, Ryan Nobles and Joan Biskupic contributed to this report.