Justice Clarence Thomas has openly flouted the federal law that requires all federal judges, including Supreme Court justices, to recuse themselves from cases in which they cannot be impartial: He has participated in a case in which his wife, Ginni, undeniably has an interest. For a long time, it has felt like there is nothing to be done about this—conventional wisdom says that short of impeachment, Supreme Court justices are immune from penalties for their misconduct. But that is wrong.
Thomas’ eight colleagues have the tools to protect the court’s integrity: They can publicly censure him, bar him from being the decisive vote in cases in which he should have recused, and take away his power to author majority opinions. Whether they will take action is a different story, which may explain why the court’s reputation is at a historic low.
But Thomas, who has long played fast and loose with recusal laws, has finally gone too far. The issue came to a head last month, when the Supreme Court refused to block the House committee investigating the Jan. 6 attack on the Capitol from obtaining Arizona GOP Chair Kelli Ward’s phone records. In January 2021, Ward had orchestrated an alternative slate of electors (which included herself) in an effort to subvert the election of Joe Biden as president. Thomas participated in the court’s decision, casting a dissenting vote, even though his wife was intimately involved in these events.
Chances are you heard nothing about this. That’s because the decision was part of the court’s “shadow docket”—orders issued without hearing or written decision—and so it garnered little public attention.
But it should have, because Thomas’ participation in the case was a flagrant violation of the federal law requiring recusal from cases in which it is “known by the judge” that his spouse “ha[s] an interest that could be substantially affected by the outcome.” His vote also transgressed that statute’s broader provision requiring disqualification in “any proceeding in which [a judge’s] impartiality might reasonably be questioned.”
Ginni Thomas’ connection to the case is not in question. She has actively tried to overturn Biden’s election in Arizona and other states. In December 2020, Ginni Thomas sent letters to 29 Arizona lawmakers urging them to “fight back against fraud” and select a “clean slate of Electors” after Biden won the election. She also sent numerous text messages to President Trump’s chief of staff demanding he overturn the election, and attended the rally on the Ellipse on Jan. 6, though she left before the attack on the Capitol. This past September, the Jan. 6 committee subpoenaed and interviewed Ginni Thomas, and she repeated then her unfounded belief that the 2020 presidential election was stolen.
Without question, Ginni Thomas has an “interest that could be substantially affected by the outcome” of the Jan. 6 committee’s subpoena of Ward’s phone records. Also, without question, Justice Thomas knew it when he cast his dissenting vote to bar disclosure.
The eight other justices know it, too. Yet so far, they have done nothing about a fellow justice’s blatant violation of a federal law designed to protect the integrity of the court on which they serve. Understandably, the justices are reluctant to police their colleagues. But Justice Thomas’ extraordinary conduct calls for an extraordinary response.
For starters, Thomas’ colleagues should publicly censure him. There is nothing to stop any one of the justices—or better yet, all eight acting together—from issuing a public statement criticizing Thomas for violating the federal recusal statute. Public reprimands of federal judges by their colleagues are rare, but not unprecedented. Recently, judges on the 7th Circuit censured a fellow judge for the relatively minor offense of criticizing Chief Justice John Roberts in a few sentences in a law review article. Surely Justice Thomas’ decision to flout a statute that protects the integrity of the court and the due process rights of litigants deserves at least the same response.
The eight justices should also agree never to allow Thomas to be the deciding vote in a future case in which he has a conflict of interest. Precedent exists for this admittedly extraordinary step: After Justice William O. Douglas suffered a debilitating stroke in 1974, his colleagues agreed not to allow him to cast the decisive vote in future cases. The other justices voted instead to postpone these cases to avoid the obvious injustice that would occur were a mentally impaired justice to cast the deciding vote setting precedent for the nation.
Justice Thomas’ colleagues should do the same. To allow Thomas to cast the deciding vote in a case in which he is personally biased is far more serious, not only making a mockery of federal law but also violating litigants’ constitutional right to be heard by an impartial judge.
Roberts in particular has both a special obligation to protect the integrity of the court and unique power to do so. When voting with the majority, the chief justice alone decides which justice will write that opinion. Roberts should refuse to assign Thomas any new majority opinions unless and until Thomas agrees to adhere to recusal standards. That penalty has been applied to lower federal court judges under the Judicial Conduct and Disability Act without constitutional objection. There is no reason why Roberts could not employ the same sanction against Thomas now.
Finally, the justices should establish new procedures regarding recusal. They should end the laughable practice of allowing each justice to decide for him or herself whether to recuse. Instead, all questions of recusal should be referred to the full court for decision—a policy proposed by Congress in pending legislation, and that is already in place in many state high courts.
The justices have acted in unison to protect recusal standards in the past. In a 1993 letter, seven justices announced new policies for recusing themselves from cases in which a family member had worked as a lawyer at early stages of the litigation. Thomas can hardly object—he signed that letter.
The need for action is urgent. In light of his willingness to violate the federal recusal statute, the public now has good reason to question whether Thomas will follow any law. Will he continue to report gifts, outside income, and his wife’s employment, as the Ethics in Government Act requires of all high-level federal officials? (Justice Thomas has in fact already fallen short in reporting his wife’s income in the past.) Will he abide by the federal law prohibiting acceptance of gifts from anyone whose “interests may be substantially affected by” his decisions?
A response is essential because Thomas is not the only member of the court currently dogged by allegations of misconduct. The chief justice is currently investigating the leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization back in May, an investigation that implicates all nine justices as well as their clerks and staff. And a recent New York Times article recounted allegations that Justice Samuel Alito leaked the results of a landmark contraception case in 2014. Justice Alito denies it, but the allegations seem worthy of investigation, if only to uncover further details about the campaign by advocates to influence the result by fostering personal connections to the justices.
And these leaks are arguably less serious than what Justice Thomas has openly done: flouting a federal law and undermining due process by voting in a case in which he has a clear conflict of interest. If he faces no consequences, what is to stop the other justices from violating whichever rules they prefer not to follow?
Admittedly, the chances of the court taking any of these steps is low, despite the fact that there is strong precedent for doing so. If the eight justices continue to remain silent, it is not because they lack the power to protect their institution, but rather because they have chosen not to do so.