Lawmakers to look at Supreme Court ethics changes after Ginni Thomas' election texts stirred debate
The hearing comes after reports that Justice Clarence Thomas' wife, Ginni Thomas, texted a Trump official urging him to overturn the 2020 election.
- Two bills before Congress seek to address several longstanding criticisms of the court.
- Without reform, the primary ethical requirement that does exist for Supreme Court justices lacks an effective enforcement mechanism.
A House panel will hold a hearing Wednesday on whether to change ethics requirements at the Supreme Court, a month after reports revealed Justice Clarence Thomas' wife, Ginni Thomas, texted a Trump administration official in early 2021 and urged him to overturn the 2020 election.
Ginni Thomas’ texts, along with her admission she attended Trump's speech before the violence erupted, renewed debate over ethics standards on the nation's highest court because Justice Thomas sided with Trump in a case where Trump was seeking to keep insurrection-related communication secret.
It is not yet known whether Ginni Thomas’ texts were in that batch of communication, or whether Justice Thomas knew about his wife’s efforts related to the election, but the issue once again sparked uproar about when Supreme Court justices should recuse themselves.
The bills that are likely to come up at the 2 p.m. hearing of a House Judiciary subcommittee would require justices to follow a binding code of ethics. The nation’s highest court does not regard itself as legally bound to the code of ethics that other federal judges follow, but justices say they consult that code and take ethics very seriously.
Similar bills to change ethics at the nation’s highest court have been introduced since 2011, and Congress has not passed them. During that time, the nonpartisan advocacy group Fix the Court logged 52 ethical lapses among justices appointed by Republicans and Democrats alike.
“This is a Congress that can't agree on the time of day,” said Russell Wheeler, a scholar at the nonpartisan Brookings Institution. “Most Republicans will say, ‘Well, his wife's behavior may be a little strange,’ or as they say, ‘Well, she's entitled to that,’ but they'll certainly defend Justice Thomas, and I don't think they'd want to be a party to legislation that would seem to be a slap in the face to him.”
Gabe Roth, the executive director of Fix the Court, said congressional Democratic leaders have never before shown this type of momentum on addressing Supreme Court ethics. But he said he is hesitant to be “totally optimistic” about change coming, in part because the judiciary has resisted such efforts in the past.
“As much as this is about ethics in the judiciary, this is about power,” he said, “and they don’t like ceding that power.”
Bills would address longstanding controversies
Two current bills — the Supreme Court Ethics Act and the 21st Century Courts Act — seek to address several of the longstanding criticisms of the Supreme Court and its justices.
The Supreme Court Ethics Act would require the Judiciary’s rulemaking arm, the Judicial Conference, to create a code of conduct that applies to Supreme Court justices, something that the Supreme Court has been reluctant to mandate itself.
The Judicial Conference consists of senior district judges and circuit court judges, with Chief Justice John Roberts presiding.
In 2018, the Judicial Conference said in a letter to House leadership that such a measure would be inappropriate because “the Judicial Conference does not oversee the Supreme Court and does not have expertise to craft a code for their use.”
In a 2019 hearing, Justice Samuel Alito repeated this theme, saying the Constitution is clear about district courts and circuit courts being subordinate to the Supreme Court.
At the same hearing, Justice Elena Kagan said Roberts was studying whether to have a specific code of conduct for the Supreme Court. She agreed with Alito that the Supreme Court has reservations about following the same code as other federal judges. The Supreme Court did not respond to USA TODAY’s inquiry about the status of that study.
“The Supreme Court itself should try to raise its own ethics standards so that there’s less need for Congress to get involved,” said Tyler Cooper, senior researcher for Fix the Court, “but seeing as the Supreme Court has had significant opportunity to address this … we think it would be entirely appropriate at this stage for Congress to step in.”
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The 21st Century Courts Act would direct the Supreme Court to implement its own code of ethics. Under the bill, if the Supreme Court fails to issue its own code of conduct, the Supreme Court would have to abide by the same code of conduct as federal judges on lower courts.
Other measures in the 21st Century Courts Act involve issues that observers have raised questions about for years.
One measure would require new disclosures from parties that file friend-of-the-court briefs in cases in front of the Supreme Court. Another measure would require more disclosures related to who pays for travel for judges and justices.
Ginni Thomas has been paid by and sat on the board of directors for organizations that file these types of briefs with the court, according to the New Yorker and Fix the Court.
A third would require oral arguments in front of the Supreme Court to be videotaped and published on the internet.
Alito and Kagan said in 2019 that while they supported increased transparency, video recordings would turn the court into a spectacle.
“I think that lawyers would find it irresistible to try to put in a little sound bite in hope of being that evening on CNN or Fox or MSNBC or one of the broadcast networks, and that would detract from the value of the arguments in the decision-making process,” Alito said.
Justices have failed to recuse themselves in some cases
Without reform, the primary ethical requirement that does exist for Supreme Court justices lacks an effective enforcement mechanism, leaving implementation up to each individual justice, who at times have failed to disclose potential conflicts of interest.
Justices must follow a recusal statute that requires them to sit out on a case when they have “a personal bias or prejudice concerning a party,” when a household member “has a financial interest in the subject matter in controversy,” and “in any proceeding in which his impartiality might reasonably be questioned.”
Roberts failed to remove himself in three cases that affected his stock holdings, according to Fix the Court. In two of those cases, the Supreme Court declined to take up the cases. In the third case, Roberts recused himself from oral arguments after the error was brought to his attention, according to Fix the Court.
Justice Stephen Breyer sat for oral arguments in a case that affected a stock holding and sold the stock the next day, when he realized there was a conflict, according to Fix the Court.
Justice Thomas sat for Trump's recent case challenging the Jan. 6 committee's subpoena over his records after Ginni Thomas had signed a letter criticizing the existence of the committee, according to Fix the Court.
The late Justice Ruth Bader Ginsburg publicly criticized former President Donald Trump but sat for cases that his administration brought before the court.
Justice Sonia Sotomayor failed to report a luxurious trip that the University of Rhode Island provided her, according to Fix the Court. Justice Thomas attended a retreat backed by the conservative megadonor Koch brothers.
Alito and Justice Brett Kavanaugh met with the National Organization for Marriage even though the group had unresolved issues before the court. Justice Amy Coney Barrett appeared at a dinner with Senate Minority Leader Mitch McConnell and his friends before delivering a speech for them.
Kagan sat for a case challenging the Affordable Care Act even though she worked for the Obama Administration in a role that involved defending those types of cases.
Some of the responsibility of avoiding conflicts of interest has fallen on the spouses themselves.
Jane Sullivan Roberts, the chief justice’s wife, stopped practicing law in 2003 after her husband took a seat on an appeals court. She now has a career in legal recruiting.
Marty Ginsburg sold his stock after a newspaper revealed that Justice Ginsburg was sitting for cases that affected some of those stocks.
Reform bogged down for years
The Supreme Court has for years resisted any attempt by Congress to pass laws aimed at reform, and history says the latest attempts by Congress are likely to end up stalled.
Wheeler, from Brookings, said lawyers handling cases before the Supreme Court have the opportunity to file a recusal motion to ask a justice to recuse himself or herself. After the motion is filed, the justice could either recuse without explanation or ignore the motion, leaving no option for appeal. Justices can also voluntarily recuse themselves and do not need to give an explanation.
In 2011, Sen. Chris Murphy, D-Conn., introduced a bill that would have directed the Judicial Conference to create a process where retired justices and judges would hear appeals from justices’ denials of recusal motions.
Wheeler said legal scholars ripped Murphy’s 2011 bill as proposing to create a second Supreme Court, so it went nowhere. The bill instead evolved into the Supreme Court Ethics Act, which is introduced in every Congress. The House folded that bill into a voting rights package that passed the House in early 2021 and did not pass the Senate.
A measure called the Judiciary Reforms, Organization and Operational Modernization Act that Republicans spearheaded in 2018 also would have required the Judicial Conference to issue a code of conduct that applied to justices. The bill also would have required justices to disclose the reasons behind a recusal decision.
Republican Rep. Darrell Issa, of California said at the time how the reforms were important for court operations and would, “bring more transparency to courts.”
The proposal sailed through the House Judiciary Committee, but Democrats didn't back the measure when it got to the House floor. The bill would have added more district court judges. Rep. Jerry Nadler, of New York, said the bill would have given then-President Donald Trump 52 new seats “to pack the federal courts with extremist judges.”