WASHINGTON (CN) — The Supreme Court is embroiled in a scandal like the institution has never experienced before. With hyper-partisan politics, waning public trust and historic rulings coming to a head, legal experts say what the justices choose to do next could have consequences for the high court’s role in American democracy.
The Washington Post uncovered dozens of texts from Justice Clarence Thomas’ wife Virginia Thomas — who goes by Ginni — urging former White House chief of staff Mark Meadows to pursue efforts to over turn the 2020 election.
Former President Donald Trump spoke publicly about his wish to contest the election results at the Supreme Court. In February 2021, the Supreme Court rejected election challenges filed by Trump and his allies. Thomas — who was one of three dissents on the challenge — wrote a solo dissenting opinion calling the refusal “inexplicable.” Thomas was then the lone dissent when Trump appealed to the court this January to keep his White House records out of the hands of the congressional committee investigating the Jan. 6 insurrection.
Legal experts warn that Thomas’ refusal to recuse threatens the court’s legitimacy.
This is not the first time the high court has faced controversies that have put its legitimacy into question. In the 1930s, Roosevelt suggested adding justices to the court to combat conservative justices that were striking down New Deal legislation. The now-famous “switch in time that saved nine” was born when Justice Owen Roberts switched his position on a case and prevented the need for adding justices.
However, this legitimacy crisis is entirely different.
“This is really different,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “This is a sense of a highly politicized court which is connected with a highly politicized process.”
The politicization of the court can not solely be tied back to the possible conflict of interest issues between Ginni Thomas’ political advocacy and Clarence Thomas’ work on the court. Instead, experts say this example is really a piece of a large problem.
“I think this really exemplifies the problem. It’s really not another thing; in a sense, it’s really of a piece,” said Caroline Fredrickson, a distinguished visitor from practice at Georgetown Law and senior fellow at the Brennan Center for Justice, in a phone interview. “We’re at a point where the court has really become a contentious institution, and part of it is because the justices themselves seem to think they’re above the law.”
Supreme Court justices are supposed to recuse from any case in which there could be a perception of a conflict of interest and this includes cases in which spouses or other family members might have an interest. During her confirmation hearings last week, Judge Ketanji Brown Jackson said that, if confirmed, she would recuse from an affirmative action case the court is set to hear next term because of her connections to Harvard University. It’s not clear that Jackson had an actual conflict of interest in the case, but the perception that she might is still there.
Justices have previously dealt with family members’ work conflicting with their work on the court. The choice is for either the justice or the family member to step aside.
“Every Justice and their close family members have a choice,” Richard Bernstein, a lawyer who filed amici briefs in the Supreme Court opposing election challenges by President Trump and his supporters. “One option is the close family member stays out of a case that is headed for the Supreme Court. This is what Eugene Scalia and Jane Ginsburg, among others, did for decades when they had a parent on the Court. Or the family member participates but the Justice recuses. Mrs. Thomas was free to give legal advice to Trump’s chief aide so long as Justice Thomas recused. But the Justice and Mrs. Thomas could not have their cake and eat it too.”