WASHINGTON – Following revelations of inflammatory text messages from Virginia Thomas, wife of Justice Clarence Thomas, to the Trump White House, primarily in the weeks leading up to the Jan. 6 attack, Congressional Democrats called on Chief Justice John G. Roberts Jr ., To take action.
But the Chief Justice is powerless to force Justice Thomas to resign.
The messages, which included conspiracy theories about the election and urged Mark Meadows, President Donald J. Trump’s chief of staff, to work to overturn the results, could well mean that Judge Thomas is turning away from cases related to the 2020 election and its aftermath should disqualify.
In fact, legal experts said it wasn’t a close question. But it is a matter that the norms and structure of the Supreme Court leave to the discretion of the relevant judiciary.
Regardless of his title, the Chief Justice is not the head of the other members of the Court. He has some administrative responsibilities and the power to assign majority opinion when he is in the majority. He directs impeachment proceedings against incumbent presidents. He earns $12,500 more than his peers.
But that basically exhausts the practical differences between the roles of the Chief Justice and the eight Associate Justices. Indeed, Chief Justice Roberts has joked about the “strange historical quirk” that gives Chief Justices only one voice.
Of course he can set a good example. He can make public statements, such as when on various occasions he rebuked Mr. Trump and Senator Chuck Schumer of New York, the Democratic leader, for attacks on members of the federal judiciary.
But he doesn’t presume to tell other judges what to do. After news reports reported that he asked colleagues to wear masks on the bench during the Omicron wave, he took the unusual step of making a public statement.
“I have not asked Judge Gorsuch or any other judge to wear a mask on the bench,” he said. (Judge Neil M. Gorsuch was the only judge not to wear a mask in some altercations in January.)
The chief justice said that decisions on recusal are also left to the individual judges.
“I have every confidence in my colleagues’ ability to determine when a recusal is warranted,” Chief Justice Roberts wrote in 2011, amid calls for Justice Thomas to recuse himself from a challenge to the Affordable Care Act, which Ms. Thomas had worked against. “They are lawyers of exceptional integrity and experience, whose character and suitability have been assessed through a rigorous appointment and confirmation process.”
It would be undesirable to allow other justices to second guess their peers’ denial decisions, wrote Chief Justice Roberts.
“The Supreme Court does not rule on the decision of any of its own members to object in the course of the decision of a case,” he wrote. “Indeed, if the Supreme Court were to review these decisions, it would create an undesirable situation in which the court could influence the outcome of a case by choosing who among its members may attend.”
At a news conference on Capitol Hill on Tuesday, Speaker Nancy Pelosi, a Democrat from California, said she believes Supreme Court justices should face a stricter code of ethics, adding that she has suggested that Democratic lawmakers hold a hearing in which such a provision is emphasized in its Voting, Ethics and Campaign Funding Act.
“I hear people say from time to time, ‘Well, it’s a judge’s personal decision whether to retire,'” Ms. Pelosi said. “Well, if your wife is a recognized and proud contributor to a coup in our country, maybe you should consider that in your ethical standards.”
While Chief Justice Roberts lacks any formal authority over his peers, it is at least conceivable that Judge Thomas will consult him on whether the activities of his wife, who calls herself Ginni, should warrant a recusal in some cases.
At a 2019 budget hearing before a House Committee, Judge Elena Kagan said that when faced with ethical issues, she and other members of the court sometimes sought advice from one another, particularly from Chief Justice Roberts.
“Maybe we consult with our colleagues or some of them,” she added. “Especially the Chief Justice.”
Judge Kagan said that “the Chief Justice is examining the question of whether he should have a code of conduct that applies only to the United States Supreme Court.”
“It’s something we haven’t discussed at a conference,” she said, referring to the judges’ private meetings. “And that has advantages and disadvantages, I’m sure. But it’s something to think about very seriously.”
It has been three years since Judge Kagan spoke, and the code she described has not surfaced.
But the walkout is already the subject of a federal law that applies to the judiciary. “Every judge, judge or magistrate of the United States must disqualify himself,” it says, “in any proceeding in which his impartiality might reasonably be called into question.”
This law was the subject of a 1993 letter signed by seven judges. It addressed what to do when a family member worked on a case at an early stage or was a partner in a law firm representing a client in a Supreme Court case.
The seven judges wrote that they had “spouse, children or other relatives” who might fall into these categories. It makes sense, they wrote, to announce clear rules for dealing with such conflicts before they arise.
“Defining and announcing our policy in advance will make it clear that future decisions to reuse or not to reuse will not be influenced by irrelevant circumstances of the individual case and will provide the necessary guidance to our relatives and the companies to which they belong,” so the judges wrote.
The letter drew some subtle distinctions. In general, it said, unless the relative was the lead counsel, a denial “due to the involvement of a relative as counsel in earlier stages of the case” is not required.
The letter added that the judges who signed it “would refrain from all cases where appearances are made on behalf of parties of firms in which our relatives are partners, unless we have one from the firm.” Receive written assurances that Supreme Court litigation proceeds will be permanently excluded from our dependents’ partnership interests.”
The letter is notable not because it addresses circumstances such as emerge from Ms. Thomas’s text messages, but because it was a careful and transparent public discussion of difficult ethical issues arising from the activities of family members. And because it was signed by Judge Thomas.
Catie Edmondson contributed to the coverage.