In his recent alarm over a widely reported decline in public confidence in the Supreme Court, Justice Clarence Thomas chose a worthy target, but his diagnosis missed a major symptom: his own family ties.
Speaking at a conference sponsored by three conservative think tanks, Thomas expressed his dismay in response to the recent unprecedented leak of a draft opinion that suggests the court is poised to overturn the 1973 Roe v. Wade decision that legalized abortion nationwide.
As shocked as abortion rights supporters were by the draft opinion, conservatives like Thomas sounded more outraged by the leak, which he called “tremendously bad” and “kind of an infidelity” to the norms, trust and respect on which the nation’s critically important institutions rely.
“I wonder how long we’re going to have these institutions at the rate we’re undermining them,” he said.
“And when you lose that trust, especially in the institution that I’m in,” he said, “it changes the institution fundamentally. You begin to look over your shoulder.”
He’s not alone in his concerns. Recent polls show Americans’ approval of the high court hitting new lows even before the leak.
An NPR/PBS News Hour Marist poll found a 20-point drop in confidence in the court, with 56% of respondents saying they have little or no confidence at all in the court, compared with just 36% of Americans who said the same in February 2018, before the slide began.
A surge in public desire to rein in the court is suggested in a Morning ConsultPolitico poll that shows a seven-point advantage for proposals to expand the number of justices on the court.
Wading through such divisive issues as vaccine mandates, affirmative action in college admissions and the Jan. 6 assault on the Capitol, the Supreme Court’s approval ratings have taken a beating in recent years.
But the combative nature of politics in these times makes it critical for the court to maintain respect for its ability to “call balls and strikes,” in Chief Justice John Roberts’ clever baseball umpire comparison.
Yet, not surprisingly, Justice Thomas ignored an issue brewing closer to home: his own refusal to recuse himself in cases linked to his politically active wife’s activism.
Mounting evidence has found Justice Thomas’ wife, Virginia “Ginni” Thomas, an attorney and activist in Washington conservative circles, played a disturbingly significant role in events pertaining to cases from which he has declined to recuse himself, according to reports.
For example, Ginni Thomas exchanged at least 29 text messages with then-White House chief of staff Mark Meadows as the two of them strategized about overturning the 2020 presidential election result, according to The Washington Post’s Bob Woodward and CBS News’ Robert Costa.
Although questions have risen before about her freelance political activities, this report was the first to offer direct evidence that Ginni Thomas advised the White House in connection with the Jan. 6 attack on the Capitol and President Donald Trump’s so-called “Stop the Steal” effort.
Recusals matter. Significantly, the news of Ginni Thomas’ text messages broke a day after Supreme Court nominee Ketanji Brown Jackson testified that she would recuse herself from a major case involving Harvard University, where she serves on the governing board. Justices should not participate in cases in which they or close family members have a personal interest.
Yet Ginni Thomas’ text messages to Trump’s chief of staff during the weeks between the 2020 election and the aftermath of the Jan. 6 attack on the Capitol showed that she had actively supported the legal effort to overturn the vote.
“Biden and the Left is attempting the greatest Heist of our History,” one message said.
Yet, Justice Thomas participated in a ruling in January on an emergency application from Trump asking the court to block the release of White House records concerning the attack on the Capitol. The court rejected the request, in a sharp rebuke to the former president.
But only Justice Thomas noted a dissent, giving no reasons.
That appearance of conflict follows a long history of both liberal and conservative justices who have refused to recuse, despite widespread calls for them to do so.
Thomas defenders have cited the example of Thomas’ ideological opposite, the late liberal Justice Ruth Bader Ginsburg, whose husband Martin Ginsburg, a prominent tax lawyer, was often tied directly or indirectly to cases before the high court. In 1997, he made headlines by selling stocks in eight companies after his wife was revealed to have participated in cases involving the companies.
Conservative critics also criticized Justice Ginsburg for hearing cases that involved the ACLU and women’s rights organizations with which she had worked before she became a justice.
Coincidentally, the most prominent allegations of recusal abuse in modern times include Justice Antonin Scalia, famously known to be Ginsburg’s opera buddy despite their polar-opposite ideologies.
In 2004, Scalia rejected calls to recuse himself from a case involving then-Vice President Dick Cheney’s energy policy task force despite having gone on a hunting trip with Cheney.
In a notable defense, Scalia insisted that he had “never hunted … in the same blind or had other opportunity for private conversation” with Cheney.
And who are we to judge? Well, that’s not a flippant question. The question of whether to recuse of not is a judicial decision, legal scholars note, reviewable only by a higher court — and there is no court higher than the Supreme Court.
The case of the Thomases has renewed interest in proposals suggested over the years, including a “super court” that would have the power to oversee the Supreme Court. But even if such a body were created, Brookings Institution legal scholar Russell Wheeler observes in a recent essay that the “process” could not order a judge off the case unless he denied a party’s recusal motion, “and parties are reluctant to file recusal motions for fear of offending a judge.”
Wheeler concludes with a pithy 1953 observation by Justice Robert Jackson: “We are not final because we are infallible, but we are infallible only because we are final.”
Indeed, in settling disputes, that finality can be rewarding or frustrating in the short run, depending on which side wins or loses. But over the long haul, the court’s effectiveness relies on the ability of its justices to show integrity and independence from outside influences.
That integrity can be strengthened if the Supreme Court adopted a code of ethics that would help justices navigate potential instances of undue influence and other judicial tripwires.
Like umpires, the Supreme Court may not be infallible in our democracy but its judgments are final. If justices cannot display independence from outside influences, then perhaps a code of ethics can restore the confidence and trust in the body that as begun to wane among an increasing number of Americans.
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