It’s hardly a secret that public confidence in the Supreme Court has sunk perilously low. Somehow, though, Justice Clarence Thomas seems not to have gotten the message. If anything, he seems intent on making a bad situation even worse.
By all reports, he plans to sit later this month when the Court hears Trump v. United States—a case of monumental importance in which he has a conflict of interest that’s monumental as well. If he doesn’t recuse himself, he may well damage public confidence in the Court beyond repair.
Last November, the Justices adopted the Court’s first-ever code of judicial ethics for its members. They prefaced the “Code of Conduct” with a “Statement” that acknowledged a public perception that “unlike all other jurists in this country,” the Justices “regard themselves as unrestricted by any ethics rules.”
According to the Statement, that perception reflects a “misunderstanding” that arose “in recent years” from the fact that the various ethical standards, statutory and otherwise, that “guide” the Justices’ conduct had never before been collected into a single code. In now collecting those standards “in one place,” the Justices hoped to “dispel” that “misunderstanding” and restore public confidence in the Court.
That was a lot to ask of any code, particularly one that has no enforcement mechanism. It’s also doubtful that the absence of a single code had all that much to do with the public perception that the Justices consider themselves unbound by ethics rules. More likely, that perception stemmed largely from various press reports that one or another Justice—and Justice Thomas, in particular—had accepted expensive gifts and later sat on cases in which the donors appeared to have an interest.
At a minimum, though, the recognition in the Statement that public confidence in the Court is seriously in need of restoration was a positive development. And the Code, even though designed only to “guide,” not compel, the Justices’ conduct, was a step in the right direction.
Public confidence is a precious commodity for all our institutions of national government, but especially for the Court. Without the kind of means that Congress and the President have to enforce their decisions, the Court depends above all for its effectiveness on public confidence in its judgment.
But whatever good the Statement and Code have done for public confidence in the Court will be more than undone if Justice Thomas participates in Trump v. United States. Because of his wife’s intimate involvement in the efforts to overturn the 2020 presidential election results and obstruct certification of the electoral vote, Justice Thomas should not be involved in the consideration or decision of a case where the Court must decide whether former President Donald Trump is immune from being tried for conspiring to achieve those very results.
It’s hard to imagine anything that a Justice might do that would more effectively perpetuate, rather than “dispel,” the negative public perception plaguing the Court. It would make a mockery of the Court’s recent adoption of a Code.
Congressional and media investigations have made clear Virginia Thomas’s active part in the events of, and leading up to, January 6, 2021. She served on the board of an organization dedicated to “Stop the Steal”; was in the raucous crowd at the January 6 rally that included some who then marched to the Capitol Building and forced their way in; texted Trump’s Chief of Staff Mark Meadows to do his utmost to overturn the election results; tirelessly lobbied Republican state legislators to displace lawful electors with ones of their own; and more.
Canon 3.B.(2) of the Court’s Code states as a general principle that, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” It then specifies certain “instances” calling for disqualification. One is that the Justice “knows” that his or her spouse has a financial interest “or any other interest that could be affected substantially by the outcome of the proceeding.” Another is that it is “known by the Justice” that his or her spouse is “likely to be a material witness in the proceeding.”
Justice Thomas surely knows that his wife has a very real interest in the Court’s upholding Mr. Trump’s immunity defense and dismissing the charges. If the charges are dismissed, not only needn’t she worry about a lawyer or witness embarrassing her by referring at trial to her vigorous efforts to undo the election results, but the likelihood of a public outcry calling for charges against her would be much less.
Similarly, given Virginia Thomas’s significant involvement in activities central to the charges against Mr. Trump, the chances that Justice Thomas isn’t aware that his wife may well be a material witness seem close to nonexistent.
In the words of Canon 3.B.(2), an “unbiased and reasonable person who is aware of all relevant circumstances” not only “might reasonably” question whether Justice Thomas has the requisite impartiality to sit in Trump v. United States, but couldn’t “reasonably” not question it.
Canon 3.B.(3) calls attention to a competing consideration: “The rule of necessity may override the rule of disqualification.” The “rule of necessity” treats as a significant factor that a Justice’s recusal means eight, rather than nine, Justices sitting on the case. As discussed in the “Commentary” appended to the Code, that has certain undesirable effects. In hearing and deciding the case, the Justices to some extent may not have as full an exchange of views. In addition, the Justices may deadlock 4-4 on whether to affirm or reverse.
Those undesirable effects should give a Justice pause before deciding to recuse, but not enormous pause. It’s doubtful that the absence of a single Justice typically affects the robustness of the Court’s deliberations all that much. Similarly, although an equally divided Court isn’t a welcome prospect, it’s hardly something to be avoided at all costs. There is a final decision in the case. It’s simply the one reached by the court below, rather than one handed down by a majority of the Court.
The truth of the matter is that it’s simply not that unusual for the Court to hear cases with fewer than nine Members. It has happened for weeks at a time when a Justice has been sidelined by serious illness and for months at a time when, as occurred most memorably after Justice Antonin Scalia’s death, the Senate has allowed a vacancy to lie long unfilled.
Because there’s no reason to think that Justice Thomas’s recusal in Trump v. United States would have any greater negative effects than Supreme Court recusals ordinarily do, those effects plainly don’t outweigh the factors militating in favor of recusal.
If, as seems all too likely, Justice Thomas refuses to recuse himself in Trump v. United States, what then? The Code gives the other Justices no authority to order him not to sit, but that doesn’t mean they are powerless to try to stop him from wreaking havoc on the reputation of the Court.
Because of people’s already much-depleted confidence in the Court, and because of all that’s at stake for the nation in Trump v. United States, Justice Thomas’s refusal to recuse may well be not simply one more blow to public confidence in the Court, but a blow with the potential to damage that confidence beyond repair.
A decision that threatens such damage to the Court is not one that any one Justice should be able to make on his own. At a minimum, the other Justices should tell him that if he insists on participating in Trump v. United States, he owes it to the Court as an institution to explain to the public how he reconciles his decision with the Code that he, along with all the others, signed only several months ago.
Ultimately, if he does not recuse himself and refuses even to explain his decision to the public, his colleagues would have to choose between following the Court’s unwritten rule of public politeness toward one another and publicly disassociating themselves from a decision with potentially ruinous consequences for the Court. That would be a painful choice, but not a hard one if they keep the Court’s and the nation’s best interests foremost in mind.