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As the Roe decision ricochets through America, further eroding the idea that we live under the rule of law and not raw politics, we must also ask a more fundamental question: Can the U.S. Supreme Court do anything to pull back from the brink of a full-on slide into pure partisanship? Already reeling from the leaked Roe draft opinion earlier this spring, public confidence in the court, with the release of the final decision, has dropped to all-time lows, undermining the legitimacy of a core institutional pillar of American democracy — now itself under siege.
Already reeling from the leaked Roe draft opinion earlier this spring, public confidence in the court, with the release of the final decision, has dropped to all-time lows.
That this siege has been led by lawyers who have sworn to uphold the rule of law — John Eastman, Rudy Giuliani, Sidney Powell and Cleta Mitchell, among others — is a stunning development. Many of these lawyers are currently under investigation by bar associations, which hold the power both to confer professional licenses and to take them away in cases where it finds the fundamental rules of lawyer ethics — which would prohibit the making of false statements, assisting in crime or fraud and not exercising independent judgment — have been violated. Based on facts in the public record, the case for sanctioning the Trump lawyers is strong.
But what about Supreme Court justices? Remarkably, justices are not bound by these same rules of legal ethics. In fact, they are not bound by any ethical rules — a fact that places them at odds not only with practicing lawyers but with virtually all other judges in the United States, including other federal judges, who are governed by the Code of Conduct for United States Judges.
Yet that code exempts Supreme Court justices from its coverage. The rationale is that judges in lower federal courts are established by Congress. In contrast, U.S. Supreme Court justices derive their authority directly from Article III of the Constitution, which provides that they may serve as long as they demonstrate “good behavior” and may only be removed by impeachment.
This legitimate constitutional argument nevertheless raises a far more practical question: Why don’t the justices simply agree among themselves to formally opt in to the code? The answer the judges give for not doing so is that they voluntarily follow it as a matter of conscience, and we should trust them to do that. As Chief Justice John Roberts put it in his 2011 judicial report: “I have complete confidence in the capability of my colleagues to determine when recusal is warranted.”
That confidence, however, is no longer well placed (if ever it was). In recent months, there has been an outpouring of evidence, thanks in large part to the patriotic work of the Jan. 6 committee, of conduct that would violate the spirit, and even the letter, of the code the justices purport to follow. This further underscores why such a code should now be an urgent national priority.
Many (but not all) of the court’s recent problems center on Ginni Thomas, the wife of Justice Clarence Thomas. Before the 2020 election, Ginni Thomas was granted unusual access to the Trump White House, where she advanced extreme religious and anti-LGBTQ policies while working with activists seeking to overturn Roe. (And we are now learning that anti-Roe activists engaged in a coordinated effort to wine and dine justices, including Thomas.)
After Trump lawyers launched outlandish “Kraken” lawsuits claiming Antifa conspiracies and rigged voting systems, Ginni Thomas texted Mark Meadows, Trump’s chief of staff: “Release the Kraken and save us from the left taking America down.” She urged Meadows to continue the bogus lawsuits, which he was in a position to influence. A few weeks later, former Thomas law clerk John Eastman urged a Trump campaign lawyer to file an appeal of a Wisconsin election fraud case to the Supreme Court, where Eastman claimed “there is a heated fight underway” over whether to intervene.
As the election cases crashed out in the courts, another strategy emerged, led by CNP Action, the group on whose board Ginni Thomas sat. CNP Action, the political advocacy arm of the Council for National Policy, launched a campaign to pressure legislators in five battleground states that voted for Biden to appoint a fake slate of pro-Trump electors. Eastman’s infamous legal memo to the president argued that Vice President Mike Pence could refuse to certify the legitimate Biden electors on Jan. 6 based on the fake slates.
To pressure Pence to execute this plan, Meadows coordinated with leaders of various far-right conspiracy groups to plan a show of force on Jan. 6 to “Stop the Steal.” Ginni Thomas was involved in mediating among the groups to effectuate the rally, which was officially coordinated by Turning Point USA.
The cornerstone principles of the federal code of conduct hold that judges must protect the “integrity and independence” of the judiciary, “avoid impropriety and the appearance of impropriety,” and avoid extrajudicial activities that “reflect adversely on the judge’s impartiality.”
It is very difficult to see how Thomas’ participation in any case related to his wife’s lobbying or Trump’s effort to overthrow the election would not violate every single one of these principles. His wife’s overt campaigning on issues teed up for Supreme Court review, to say nothing of her direct involvement in Democratic sabotage, cast a massive shadow over Thomas’ independence from political influence and judicial impartiality. His role demands that he keeps political influence as far away from his work on the court as humanly possible. This, in turn, should require his wife to divest from active lobbying efforts and, at a minimum, require that he not associate himself publicly with her causes. And yet he has done so on repeated occasions.
Moreover, revelations of the wife of a sitting Supreme Court justice aggressively campaigning to subvert a presidential election is a stunning blow to the legitimacy of the court. It is implausible that Thomas would not have known about her actions. The Jan. 6 committee may yet find out just how much her husband knew. But this fact-finding mission does not affect the ultimate ethics analysis that even an appearance of impropriety should be disqualifying. And if this does not appear improper to a reasonable observer, I’m not sure what would.
If this does not appear improper to a reasonable observer, I’m not sure what would.
Thomas seems to have already disregarded his ethical duty to recuse himself in cases in which his wife’s interest would be “substantially affected” by his participation in the case brought by Trump to block the Jan. 6 committee from obtaining White House records — records that would include his wife. Right now, there is nothing to prevent him from doing so again.
Despite this dangerous threat to judicial independence, there is no consensus on a pathway forward. The 21st Century Courts Act proposed in the House would require the Supreme Court to adopt its own code of conduct.
While some raise constitutional questions about whether Congress could regulate the court, a more practical concern is whether a Supreme Court Code of Ethics would actually make a practical difference. The justices would remain the ultimate arbiters of their own compliance, and their desire for autonomy would provide little incentive to police internal ethics with consistency and rigor. However, while justices would remain judge and jury over their own conduct, an ethics code would still make a powerful symbolic statement: No lawyer sits above professional values or gets to determine what those values are.
An ethics code would also create more public accountability. Being able to call out violations of an applicable rule would bring more pressure to bear for ethical compliance. During confirmation hearings, senators could elicit commitments by nominees to follow the letter of a code once confirmed, much as they currently do by asking judges whether they will honor precedent. (Although we know that promises to do so are regularly broken.)
This leads to a second objection to a code: How it could be weaponized by justices to gain advantage in pending cases. As the chief justice put it in his 2011 report, having to review and enforce ethical violations “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.” Although perhaps true in the abstract, this rationale presents an awfully dispiriting picture of the state of our country’s highest court. If the justices entrusted with the most important legal authority in our country cannot put aside partisanship to make neutral decisions about when individual recusal is appropriate, then our democracy is in a very dangerous place.
There is an ethical crisis roiling the American legal profession, led by lawyers who continue to defend their indefensible efforts to help Trump grab the steering wheel of American democracy and drive it off a cliff. It would be a mistake to see these efforts as separate from the Supreme Court’s resistance to hold itself accountable to ethical duties. Supreme Court justices are empowered by the Constitution itself. If these lawyers cannot be entrusted to uphold core professional values — impartiality and respect for the rule of law — how can we expect other lawyers to follow suit?
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