A basic principle of our system of government is separation of powers. Chief Justice Rioberts has cited this basic principle as part of an argument as to why Congress should not tinker with the mechanisms or rules of the Court in his Annual Report on the Court.
Decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence. But Taft recognized that courts also require ample institutional independence. The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government.*
All of the other judicial branches have ethics rules. There is currently a code of conduct enacted into law for federal judges, but it does not apply to the Supreme Court. “The Code of Conduct for U.S. Judges bars judges from “act[ing] as a leader in a political organization,” endorsing or campaigning for or against a political organization or candidate, raising or contributing funds for a political organization or candidate, or “any other political activity.” However, by its very terms the Code’s provision only applies to “judges.”***** While this is certainly true, the question arises whether by not recusing him/herself from a case that involves his/her spouses activity or financial or moral support, the judge is actively engaging in political activity, their protestations of innocence to the contrary. Scalie was famous for his rationalizations and insistence that he could separate his personal relationships from his judicial decisions. Hogwash.
When justices are nominated and approved to sit on the Supreme Court it has been the common practice for the spouses of justices to give up their legal practices, a rather extreme measure, but one that shows their respect for the court and to avoid the appearance of even the remotest impropriety.** Justice Breyer, whose brother sits on a lower court, even recuses himself from any case that his brother might have been involved in. There is no question that spouses are free to express political opinions and engage in political activity. What is the responsibility of the justice when a case that might involve those activities comes before the court?
That brings us to Ginni Thomas. The wife of Justice Thomas, whom I have often defended in these pages, has been more than just active in political activities. She founded the Liberty Lobby, belonged to numerous political organizations, has contributed lots of money to particular causes, and recent emails revealed she was active in the plot to overturn the election.
“I’m not sure how I would have come out if we just had a lot of texts from her saying that ‘this is terrible,’ said Amanda Frost, a law professor at American University in Washington.
“But she wasn’t doing just that,” Professor Frost said. “She was strategizing. She was promoting. She was haranguing.”****
Many of those cases may work their way to the Supreme Court, and the idea that Justice Thomas would not recuse himself from those cases makes one wonder just how he can be concerned about the Court losing the trust of society and the reputation of the court. I think he and Roberts are both worried that Congress could change the number on the court or in other ways tinker with their procedures. Thomas (and perhaps Roberts who needs to have a sit-down with the most senior justice) need only to look to themselves.
Ginni Thomas is not the only spouse who may have an out-sized influence on a Justice. Her example is just the most egregious.
According to The Huffington Post, Jane Sullivan exercises “heavy influence” over her husband, [Chief Justice Roberts] and some have speculated that she may have helped sway her husband towards upholding the constitutionality of Obamacare’s individual mandate in National Federation of Independent Business v. Sebelius. ******
It would seem clear that Mrs. Thomas has memberships and financial interests that go beyond the “political” in assorted groups. The Code of conduct for judges specifically requires recusal when those cases are brought because the judge.
The U.S. Code’s section on recusal requires disqualification when the judge “knows that . . . his spouse . . . has . . . any other interest that could be substantially affected by the outcome of the proceeding.” The Code of Conduct for U.S. Judges uses virtually the exact same language.***
It would seem to me to be in everyone’s interest to have Congress specifically apply the U.S. Code’s clarifications and restrictions to the Supreme Court in the interests of fairness, clarity, and justice.
*https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf. Pg 1
**A recent notable exception has been Amy Barrett’s husband who, in spite of ethics concerns, has not given up his practice. https://abovethelaw.com/2020/11/amy-coney-barretts-husband-to-continue-at-private-practice-firm-despite-ethics-concerns/
***Suhr, Daniel R., Ethics Central: What Limits Apply to the Political Activities of a Justice's Spouse? (May 17, 2010). Available at SSRN: https://ssrn.com/abstract=1609764 or http://dx.doi.org/10.2139/ssrn.1609764.
I highly recommend this essay that provides far more detail than I could in my essay.
****https://www.nytimes.com/2022/03/25/us/supreme-court-clarence-thomas-recusal.html
*****Code of Conduct for U.S. Judges, Judicial Conference of the U.S., July 1, 2009, http://www.uscourts.gov/library/codeOfConduct/Code_Effective_July-01-09.pdf and ABA Model Code of Judicial Conduct, American Bar Assoc., Feb. 2007, http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf. By its terms the Code only applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” Excluded from this list, obviously, are the justices of the United States Supreme Court. That is why the Code is categorized as “persuasive” in this case.
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