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U.S. Supreme Court,
Ethics/Professional Responsibility

Apr. 5, 2022

A question of ethics: How long will SCOTUS continue to get a “free pass?”

It is inconceivable but true that SCOTUS is the only judicial entity in the land that does not have a binding set of ethics controlling how it operates.

A. Marco Turk

Emeritus Professor, CSU Dominguez Hills

Email: amt4adr@gmail.com

Marc is professor and director emeritus of the negotiation, conflict resolution and peacebuilding program at CSU Dominguez Hills; adjunct professor of law, Straus Institute for Dispute Resolution, Pepperdine University School of Law; and a consultant on legal ethics.

“Help this great president stand firm, Mark!!!” implored Ginni Thomas, wife of Supreme Court of the United States (SCOTUS) Associate Justice Clarence Thomas, as she relentlessly lobbied former Trump chief of staff, Mark Meadows, in her dedicated effort to overturn the 2020 US presidential election.

This led to the demands growing daily for the recusal by or impeachment of Justice Thomas, over the controversy surrounding the openly extensive activities by the American lawyer and conservative activist who happens also to be his wife.

Publicly, Ms. Thomas has made clear her determination to find a way to overturn the 2020 presidential election of Joe Biden. The continuing controversy will not go away now because it has reached the level of lowered respect as the “biggest threat” to the legitimacy of SCOTUS.

The result has raised calls for, among others, the creation of a basic ethics law that sets out rules of transparency for organizations that file amicus briefs with SCOTUS, and establish clear standards requiring recusal among its justices in cases of a real or implied conflict of interest. Further, as the clamors continue at an increased roar, there are those who have suggested that Justice Thomas needs to either recuse himself from hearing such cases, resign or face impeachment.

According to this line of reasoning, Thomas will continue “burying his head in the sand” and stand by his refusal to recuse himself even where appropriate because, at this point, he is in so deep he needs to hope he can outlast possible impeachment to serve out his term unless he elects to retire pursuant to a face-saving arrangement.

It is inconceivable but true that SCOTUS is the only judicial entity in the land that does not have a binding set of ethics controlling how it operates. As shocking as this realization may be, I am an 86-year-old member of the bar and an adjunct law professor who would be among those not aware of this fact until years following admission to practice. I am sure the current predicament with Justice Thomas has both caught the public by surprise and created a groundswell of activity to change this untenable situation as soon as possible.

People familiar with the controversy argue that Ginni Thomas works directly with organizations that are filing cases with SCOTUS. Without at least his recusal, the outcome of these cases will be determined by the court on which her husband holds his seat for life. Of further concern, Ms. Thomas apparently has connections to groups that have written amicus briefs supporting the conservative side of these cases where SCOTUS decisions will change the thread of American existence. Among these are those where she reportedly serves on advisory boards of groups involved in such litigation.

To make the situation worse, allegedly Ms. Thomas operates a consulting group that has received fees from parties whose names are associated with amicus briefs also filed with SCOTUS. In other cases, it appears that partners in one of her advocacy organizations have petitioned or filed amicus briefs on a variety of matters. The bottom line is that the mutual involvement of Thomas and his wife in allegedly right-wing organizing, and their work to shift SCOTUS jurisprudence radically rightward, eliminates the historical place the court occupies in our system of jurisprudence.

While historically and sadly it has not held true that the courts at whatever level always honor their charge of impartiality and neutrality, it is obvious that the involvement of Thomas’ wife immediately puts into question how the public can trust that Thomas will always act appropriately concerning cases coming before him. This becomes even more critical where two major matters involving the nation’s very democracy – the Jan. 6 insurrection and the integrity of the highest court in the land – are colliding to put leaders in all three branches in a high-stakes drama testing America’s system of government.

Additionally, the off-the-bench activities of Thomas himself have traditionally ignored time-honored and self-imposed judicial guidelines that avoid even the appearance of impropriety and conflicts of interest. In and of themselves they can lead to one and only one conclusion: Justice Thomas has an ethical obligation to separate himself from any such questionable activities. Especially, when one considers he was the lone dissenter in the SCOTUS January order rejecting former President Trump’s bid to withhold documents from the January 6 investigating panel. This has resulted in more evidence demonstrating that Mr. Trump may have criminal liability attributed to his conduct regarding this tragic episode in our history.

Incredible as it may sound, there does not appear to be any real urgency to right this wrong. It is not as if there is no barometer in place. The American Bar Association has established ethical guidelines for the federal courts and created an appropriate code of conduct for all other federal judges – excluding only SCOTUS. Congress must act quickly to also make binding on SCOTUS these ethical rules before it will be too late.

As reported, the current approval rating for SCOTUS (62%) among Americans keeps decreasing in comparison with accelerating perceptions of its partisan political decision-making. Combined with increasing lack of transparency, and the embedded custom of the nine sitting members going off on their own tangents whenever and whatever they decide, disaster hovers just beyond the courtroom entrance.

The recent “closed door” appearance by Supreme Court Justice Neil Gorsuch before the Federalist Society is a prime example. There he made it clear that he answers to no one, nor do his SCOTUS colleagues. No reasonable person can deny this is a catastrophe of major proportions just waiting to happen.

With all due haste, our laws should make it clear that there is no exception to this ethical responsibility, not even for the nine mortal beings who hold lifetime appointments to the highest court in the land. The survival of our republic certainly depends on this post-haste! Additionally, a problem has surfaced over the “high-octane” debate regarding whether Gorsuch (by his egotistical assertion) is a “monster or a hero of liberty” for being the lone SCOTUS member refusing to wear a mask on the bench and at other gatherings, even though requested to do so (but without power of force) by Chief Justice John Roberts.

As astounding as it sounds, Roberts cannot order his colleagues to do anything that falls within the realm of ethical behavior. But all this strikes me as not quite the point, which is not what Gorsuch’s lack of masking means. The point is that the justices get to do or not do whatever they want, whenever it suits them, and without any obligation to explain why.

When asked, Speaker of the US House of Representatives, Nancy Pelosi, said she did not think Thomas should have received the SCOTUS appointment in the first place. Under the present circumstances, Pelosi feels Congress should look into a provision of the House-passed H.R. 1 that would create a code of ethics for SCOTUS. Referring to Thomas, reportedly she got right to the point and asked, “If your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that in your ethical standards…….It’s the Supreme Court of the United States, they’re making judgements about the air we breathe and everything else, and we don’t know what their ethical standard is?”

It stretches any limits to credulity if one believes that Thomas and his wife do not discuss these things in private when they are together. So, the proverbial rock of Molten Salt that represents his supposed neutrality and impartiality keeps melting away when standard temperature and pressure conditions become elevated.

Democratic lawmakers have called for Thomas to recuse himself from all January 6-related cases, while Rep. Alexandria Ocasio-Cortez went even further by declaring he should resign or face impeachment! While not commenting on whether Thomas should resign, Pelosi noted Congress cannot force recusals as the law now stands because that is a judge’s personal decision whether to do so. Ironically, H.R. 1 - the giant voting rights bill that died in the Senate – reportedly did include a provision establishing a code of ethics for SCOTUS.

Legal scholar Laurence Tribe was definite in his observation of what had occurred. He said that the Thomas’ failure to recuse himself from the SCOTUS Jan.-1 decision, permitting the Jan. 6 committee’s access to his wife’s text messages with Mark Meadows, was “indefensible,” demonstrating a primary “need to bind all SCOTUS justices to the federal judicial code of ethics,” the restrictions concerning which would hold them to the prohibitions already required to be followed by all other federal courts.

The serious problem with the “masks-optional policy” and the stand taken by Gorsuch is that it reflects the larger SCOTUS rules-optional policy on everything pertaining to judicial conduct of the justices. Perhaps this all goes back to the Senate’s unsuccessful effort to impeach then Associate Justice Samuel Chase in 1804-05 for reprehensible conduct in refusing to tone down his bitter partisan rhetoric. Chase, as a representative of Maryland, was one of the Founding Fathers of our nation, and a signatory to the Continental Association and United States Declaration of Independence.

According to legal experts, the Clarence Thomas “issue” has caused a “crisis at the Supreme Court.” As the controversy continues to grow, there is a concurrent realization that this third branch of our government (and arguably the most crucial) cannot be relied on to police itself, so how can it undertake that responsibility regarding the other two branches? Such an inquiry places front and center a “crisis of legitimacy” when considering SCOTUS. This could create a movement to ultimately expose the underlying fallibility of our system, something traditionally disregarded either out of ignorance or the need to patch this “crack” in the historical façade erected to present an image of the inability to be wrong.

Retrospectively, as a result of the now-fatal 1804-05 failure by the Senate to hold Justice Chase responsible, it seems a “free pass” ethically for SCOTUS has been in place ever since that vote. Without question, notwithstanding the determined efforts by Roberts to minimize its ever-expanding legitimacy crisis, current events dictate that the very survival of our republic depends on quick corrective action regarding the highest court in the land!

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