As tracked here at Ethics Alarms, presumptive Supreme Court Justice Ketanji Brown Jackson faced a serious conflict of interest problem in her position as a member of Harvard’s Board of Overseers because her first case on the Court was likely to involve Harvard’s constitutionally questionable affirmative action admission policies. She properly ended speculation by announcing at her confirmation hearing that she would recuse herself from the case. It was clearly the ethical move, but, as an almost certain member of the land’s highest court, she was not required to make it by law or binding regulation.
Now, not for the first time, progressives, activists, Democrats and Clarence Thomas haters are calling for the arch-conservative Justice to recuse himself, this time from all cases involving the January 6 Capitol riot (or as the mainstream media and Democrats will falsely tell you daily, the “deadly insurrection.”) Should he? The ethical considerations are more complicated and uncertain than in Jackson’s situation.
The reason for the alleged conflict is the activities and texts of Thomas’s wife, Ginni, a long time extreme conservative activist. Her vocal opinions as a pundit and advocate have long been used by the Left to argue that Thomas needs to recuse himself from just about every case with a strong Left-Rights divide: it’s been an ongoing strategy to neutralize Thomas using his wife that began almost from the second he was voted onto the Court. Thomas had persistently ignored the issue. This time, however, Ginni’s involvement in an issue likely to come before the Court is more direct than before.
In Part I, I will just lay out the issues, and save the analysis for Part 2.
Issue I: When Does a Spousal Relationship Require Recusal?
Obviously when a family member is or may be a direct and substantive beneficiary of a SCOTUS decision, the justice must recuse as a matter of integrity. For many reasons, some of them valid, however, the question of whether a spouse’s activities and opinions creates a conflict of interest for a judge or lawyer remains in limbo. In an interview this month with The Washington Free Beacon, Ginni. Thomas said that she and her husband kept their professional lives separate. “Clarence doesn’t discuss his work with me,” she said, “and I don’t involve him in my work.” I don’t think anyone believes that, but it is a necessary (some say) fiction to keep the advances of the women’s right movement in place. If professional women are not to be regarded as under the undo influence of their husbands, then husbands must not be seen as under the influence of their wives. To assume otherwise would mean that every female job applicant would be subject to questioning about her spouse’s activities, passions and beliefs, as well as to being asked about the nature of their relationship.
The political Left, where feminist roam, has been particularly adamant about this approach, even when it is obviously untrue. A landmark example was in 2011, when the (almost entirely left-leaning) legal ethics establishment pronounced that the fact that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed by him before he ruled against Proposition 8, California’s voter-approved gay marriage ban. They argued that his de facto gay male spouse’s opinions, interests and influence on the judge created no reasonable doubts about his impartiality. I didn’t believe that, and I don’t think they did either. Judge Walker didn’t even disclose his domestic relationship before ruling, arguing that it was irrelevant.
I wrote, here, that it obviously wasn’t irrelevant, and that it was hypocritical that these same ethicists excoriated Justice Scalia when he insisted that his friendship with Vice-President Cheney created no conflict of interest when Scalia ruled on a case where the VP was named party. (My two posts on that controversy are here, and here.) My position, consistent as an ethicist should be, was and is that both Scalia and Walker should have recused, and for the same reason: many would reasonably doubt their objectivity no matter how vigorously they maintained it.
Issue 2: When does a Supreme Court Justice have an ethical obligation to recuse?
The New York Times, as usual, botches its explanation of this ethics question. It states,
All federal judges, including Supreme Court justices, are subject to a federal law on recusal.
The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
But that is incomplete and misleading, and thus “misinformation.” By the standards used by Twitter and Facebook against conservative voices, the Times’ accounts should be suspended.
The Supreme Court is NOT subject to that law, for several reasons. The main one is that it has never been enforced, because legal experts agree that it would be immediately struck down as an unconstitutional violation of the separation of Powers. Another is a void for vagueness question: “reasonable” to whom, another judge, an objective member of the public, or a biased activist? Prof Turley has specifically stated that the Supreme Court isn’t bound by the law, though he feels it should be:
The Supreme Court is not just an island protected from modern technology but an island protected from judicial ethics. Both are by design of the justices themselves. In a self-serving interpretation, justices have long insisted that, since no lower jurist can possibly judge their conduct, they cannot be subject to judicial ethics like all other judges. It is an interpretation at odds with the highest courts of other countries. It is also at odds with common sense.
The Justices insists that they can only be their own judges and that they have voluntarily agreed to “refer” to the Code of Judicial Conduct for guidance. Often it appears that the justices honor the code primarily in the breach. Justices routinely appear in public speeches where they have discussed pending issues and cases. Justices have attended political fundraisers and have ruled in cases where they or their spouses have financial interests.
Congress should require the adoption of a formal code of ethics, including a process by which citizens can file complaints against justices. For those justices who insist on remaining their own judges of conduct, they have the same option as camera-phobic jurists: they can retire. In Federalist 10, James Madison observed that “No man is allowed to be a judge in his own cause.” However, there are nine such people who demand precisely that unilateral power when it comes their own ethics.
But literally, “you can’t get there from here.” The Court does decide what it’s ethics requirements are, and that’s that. The “shall” in the law is a joke, and if the law ever came before the Court, it would make that very clear.
Issue 3: “What’s going on here?“
The discussion in this case is poisoned by the long-standing progressive animus against Thomas. His critics have put themselves in the position of “The Boy Who Cried Wolf” by trying to use Ginni as a wedge to neutralize Thomas when there was little justification for the conflict of interest argument. This time, their case has validity, but they have no credibility.
Issue 4: “What did Ginni do?
Mark Meadows, former President Trump’s last White House chief of staff, turned over thousands of documents late last year to the House committee examining the January 6 riot. Included in them were text messages from Mrs. Thomas. In them, she urged Meadows to take steps to challenge the validity of apparent results the 2020 presidential election, which she called a “heist.” She also suggested the lawyer who should be put in charge of that effort.
I’ll try to sort all this out in Part 2.