In a 2019 speech, John Roberts, chief justice of the US Supreme Court, decried public perceptions that the court he leads had been polluted by politics.
“When you live in a polarized political environment, people tend to see everything in those terms,” he said. “That’s not how we at the court function, and the results in our cases do not suggest otherwise.”
If Roberts is so concerned about the court’s reputation, he would answer the call of Democratic legislators to create a Supreme Court code of ethical conduct and compel Justice Clarence Thomas to recuse himself from any future cases involving the 2020 presidential election, the Jan. 6 insurrection, and Donald Trump.
It’s been about a month since news reports revealed that Virginia “Ginni” Thomas, a conservative political activist and wife of the Supreme Court justice, directly lobbied Trump White House chief of staff Mark Meadows to find a way to overturn the results of the last presidential election
Armed with nothing more than far-right conspiracy theories and outlandish lies, Thomas implored Meadows to undo what she called “the greatest Heist of our History.” In 29 texts Meadows handed over to the Jan. 6 committee investigating the US Capitol insurrection, Thomas never directly mentioned her husband or the Supreme Court (though one message did refer enigmatically to a conversation with her “best friend”). Yet her access and actions garnered scrutiny of two of Clarence Thomas’s dissents related to the election and the insurrection.
Last year Thomas was the only justice to vote against the release of White House records connected to the insurrection. In another decision, Thomas denounced the court’s decision not to hear a challenge to the expanded use of mail-in ballots in Pennsylvania. His dissent seemed to cast doubt on the legitimacy of mail-in ballots, a mendacious Trump talking point amplified by right-wing media and the former president’s sycophants.
Senator Elizabeth Warren of Massachusetts and Representative Pramila Jayapal of Washington sent a letter signed by 22 other Democratic lawmakers to Roberts and Thomas asking for Thomas to explain why he didn’t recuse himself from cases connected to the 2020 election and the insurrection investigation. They also requested that Thomas recuse himself from future cases on those two topics and that Roberts “create binding, enforceable ethics rules for the Supreme Court.”
Unlike judges on other levels of the judiciary, there’s no enforceable rule that requires Supreme Court justices to recuse themselves from cases that present a conflict of interest. Seated on the bench for life, they are effectively beholden to no one but themselves.
If a justice goes rogue, this can threaten the fair and impartial administration of the law. Any impression that Thomas is putting his thumb on the scale to protect either his wife or her political obsessions undermines the court’s integrity.
It’s not as if Thomas has never recused himself. In 1996, he sat out a case challenging the male-only admissions policy at the Virginia Military Institute because his son was enrolled there. He didn’t have to, but he did so because that is generally the norm. But norms, this nation has learned too many times in the past decade, are not fixed guardrails — the kind of written standards that the Supreme Court has operated too long without.
In a Gallup Poll last year, 53 percent of respondents said they disapproved of the way the Supreme Court is doing its job. That was before the Ginni Thomas revelations, and there may be still more to come. This is a crucial moment for the high court. With public trust in this nation’s institutions eroding, Roberts no longer has the luxury of assuming his fellow justices will behave ethically. And Thomas clearly has not.
Clarification: This editorial’s description of ethics rules for Supreme Court justices has been updated. Federal law requires Supreme Court justices to recuse themselves in cases that present a conflict of interest. However, that rule is not enforced.
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