One of the most consequential decisions before the Supreme Court is not on its docket

Thomas has recused from cases before. In the 1996 case United States v. Virginia, which challenged the Virginia Military Institute’s male-only admissions policy, Thomas recused because his son was enrolled at VMI at the time. 

Thomas has not commented on why he choose not to recuse in cases related to the challenged 2020 election or Jan. 6, but legal experts say his refusal to recuse is troubling. 

“It should trouble us that the case on which Justice Thomas decides not to recuse is one related to the undermining of our entire democracy,” Douglas Keith, counsel in the Brennan Center’s Democracy Program, said in a phone interview. “You have a sitting justice deciding a case that directly affects his wife. Essentially a sitting justice went out on a limb, voted alone, to shield communications from the White House that likely included communications of his wife.”

While legal experts stress the seriousness of Thomas’ refusal to recuse, they also say the situation could have been much worse. 

“The court dodged a bullet because Justice Thomas’s vote was not critical to the outcome in any Trump election case,” Bernstein said. “But imagine if his vote had been decisive in a 5-4 ruling favoring Trump and only later was his wife’s advice to the Trump team uncovered. There would have been irreparable damage to the legitimacy of the court that is so vital to protecting our republic from political fratricide.”

It is unclear what would happen if another case involving Ginni Thomas or an organization she was involved in came before the court. Some experts say this public pressure might be enough to force Thomas to recuse, but that’s not a guarantee. If Thomas refused to recuse again, the consequences could extend further than just one case before the court. 

“It’s going to really be the definitive moment for this court,” Fredrickson said. “If, in fact, they have cases where Ginni Thomas is implicated, the organizations she’s worked with are implicated, that deal with partisan interests — in particular, the non-election or the defeat of Donald Trump — then I think the court is going to really become of a piece with Congress and its worst partisan elements. That would radically undermine the checks and balances system that we have. We have to reconsider our constitutional system at that point in time.” 

This is really a problem of the court’s own making, though. The court allows the justices to decide for themselves if they should recuse or not, and there’s really no way to challenge their decision either way. 

“Part of the problem is that the court also seems totally incapable of fixing it, of solving the problem,” Adam Winkler, a professor at UCLA School of law, said in a phone interview. “The justices take this hands-off approach where every justice makes their own decision and the other justices won’t weigh in, and as a result, you have a justice whose wife is very actively involved in a subject matter of litigation.” 

Experts have overwhelmingly said this issue just reiterates the need for a stronger ethics code for the justices. Calls for implementing an ethics code for the Supreme Court are not new. The Supreme Court itself has previously said it was taking calls for adopting an ethics code seriously. 

“Back in 2011, the court suggested that they were taking the need for an ethics code seriously and were looking into adopting their own. They said the same thing in 2019,” Keith said. “They’ve been getting the benefit of the doubt, and what’s clear is that they have not earned the benefit of the doubt.” 

Legislation has been proposed by members of Congress to hold the justices accountable, and President Joe Biden’s Supreme Court Commission recommended that an ethics code be adopted by the court. The controversy with Thomas and his wife has just increased the urgency of these calls. 

However, as members of Congress have begun to take positions on implementing a code for the justices, the issue is becoming politicized. 

On Thursday, House Speaker Nancy Pelosi called for legislation to implement an ethics code while also criticizing Thomas. 

“The Supreme Court has to at least have a code of ethics. … Why should they have lower standards than members of Congress in terms of reporting and the rest?” Pelosi said. “So you know, people say from time to time, ‘Well it’s a personal decision of a judge as to whether he should recuse himself.’ Well, if your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that into your ethical standards.” 

On the opposing side of the aisle, Senate Minority Leader Mitch McConnell derided Democrats for criticizing Thomas and, in his view, delegitimizing the court. McConnell said he has full faith in Thomas and that justices should be free to make judicial decisions without interference. 

“This is a political hit, part of liberals’ yearslong quest to delegitimize the court all because our laws and constitution occasionally inconvenience the Democrats’ radical agenda,” McConnell said on the floor on Wednesday. 

While experts say this shouldn’t be controversial, it appears Republicans and Democrats may turn it into just another partisan issue for them to fight over. 

“In any normal political environment, it would be entirely uncontroversial to respond to this moment with the application of a code of conduct,” Keith said. “The fact that there’s pushback on even that, in this moment, may relate to the fact that the case is about Jan. 6, but it also probably just reflects the hyperpolarization around the U.S. Supreme Court at this moment.” 

Regardless of Congress’ or the court’s previous plans to implement an ethics code, the issue is marred by politics. Legal experts say this puts Chief Justice John Roberts in a bind of trying to offer a solution to this problem without the appearance of political interference. 

“How do you now put those codes in place without that being part of the political process?” Lawrence said. “I think that’s squarely on the desk of the Chief Justice. Can he figure out a way to create codes of judicial ethics that the justices would bind themselves to — and future justices too — that would not be perceived as political? I think that is a very complicated issue right now.” 

The Supreme Court’s approval rating from the American public is waning and the justices rely on their support to enforce their rulings. The court has no authority besides public trust. 

“I think we are at a moment where the decline of the standing of the Supreme Court in the eyes of Americans is already clear, but how far will it sink now?” Fredrickson asked.

Not only is the public’s trust in the court declining while it is becoming more politicized, but the justices are also set to announce historic ruling on issues like abortion and gun rights at the end of the term. 

“I think we are at a stress point that I’ve never seen in my lifetime of the court’s legitimacy to make those decisions and yet we have a court that is prepared to take on these cases,” Lawrence said. “So I think we are sailing into very, very choppy waters in the next coming year or two for this court.”

Follow @KelseyReichmann

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