Supreme Court Justice Clarence Thomas bowed out of a case at the center of a congressional committee’s power to investigate, an announcement made on the first day of a new term where the justices face increased scrutiny from Congress and the public over ethics rules.
The court, without Thomas, declined Monday to hear an appeal from attorney John Eastman, who sought to overturn a lower-court decision that gave a House select committee access to his emails with former President Donald Trump.
Thomas did not explain his decision to recuse from the case, and did not have to, one of several issues that backers of an ethics code at the court have sought to change.
Democrats previously had called on Thomas to remove himself from cases related to the Jan. 6, 2021, Capitol attack, pointing to reports that his wife, Virginia “Ginni” Thomas, exchanged texts with then-White House Chief of Staff Mark Meadows related to an effort to overturn Trump’s loss in the 2020 election.
Ginni Thomas in September 2022 appeared for a voluntary interview before the now-disbanded House select committee investigating the Jan. 6 attack on the Capitol.
Another potential reason: Eastman served as a clerk for Justice Thomas, and at several points in select committee hearings, witnesses said Eastman had discussed how Thomas may rule if the Electoral College issue came before the Supreme Court.
The Eastman appeal stemmed from a trial court ruling that allowed the select committee access to some of Eastman’s emails with Trump. Eastman was the author of a strategy for Congress to reject the Electoral College votes of several states President Joe Biden won.
The ruling from Judge David O. Carter in the U.S. District Court for the Central District of California said that “the illegality of the plan was obvious” and that the emails between the two could not be subject to attorney-client privilege.
Justices recused themselves from 15 cases of the hundreds listed in Monday’s orders, but only Justices Ketanji Brown Jackson and Elena Kagan cited reasons for their recusal.
In one, a suit against the Transportation Security Administration, Jackson cited her prior service as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. In another, Kagan cited her prior work in the government to recuse from a criminal case.
In the face of months of reporting about undisclosed gifts and travel provided to justices, Democrats mounted an effort to approve legislation to mandate an ethics code for the court that has so far fizzled.
Many of the legislative proposals floated by Democrats have called for more transparency on recusal decisions and other ethics issues, including one that advanced out of the Senate Judiciary Committee on a party-line vote in July.
Democrats have faced Republican opposition to an ethics code, which put the brakes on any legislative effort, as Republicans control the House and 49 seats in the Senate.
Justices Brett M. Kavanaugh and Kagan have both said the court may act on an ethics code of some kind. Some pressure comes in response to reports in ProPublica and other news outlets about multiple undisclosed financial relationships between justices, donors and institutions like universities.
In a statement Monday, Senate Judiciary Chair Richard J. Durbin, D-Ill., again called for Chief Justice John G. Roberts Jr. and the other justices to act on a binding ethics code.
“The public reports of lavish gifts, luxury vacations, and sordid political relationships go to the heart of this Court’s credibility,” Durbin said. “Failure by the Court to establish a code of conduct makes these nine Justices self-anointed royalty in our democracy.”
Last month, Durbin called for Thomas to recuse himself from an administrative deference case following a ProPublica report that Thomas attended donor summits organized by Charles and David Koch, who fund a group whose attorneys represent the challengers in the case.
Kagan, during a speech at the University of Notre Dame last month, said it would be a “good thing” for the court to adopt a binding code of ethics. Kagan said the justices could not simply adopt the ethics code that applies to lower-court judges but could make some changes to fit the high court.
“And I think it would be a good thing for the court to do that,” Kagan said.
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