Justices decide for themselves when to step aside from cases

Reports that the wife of Supreme Court Justice Clarence Thomas implored Donald Trump’s White House chief of staff to act to overturn the 2020 election results have put a spotlight on how justices decide whether to step aside from a case.

Individual justices make their own unreviewable calls on a court that lacks a code of ethics. And the issue is not always clear, particularly when spouses also have prominent careers.

While the Supreme Court did not step into any election cases brought by Trump and other Republicans, Justice Thomas took part in the consideration of whether to hear those cases. He also was the lone vote to keep House lawmakers investigating the Jan 6. Capitol riot from obtaining contested White House documents.

Thomas did not immediately respond Friday to a request for comment made through the court’s spokeswoman. Earlier in the day the court announced he had been discharged from the hospital after a stay of nearly a week while he was treated for an infection.

Thomas' wife, Virginia, whom he married in 1987, is a longtime conservative activist who ardently backed Trump's reelection as president in 2020. In the weeks leading up to the election, Thomas used her Facebook page to amplify unsubstantiated claims of corruption by Joe Biden, Trump's opponent.

Once it was over, Thomas, known as Ginni, sent weeks of text messages imploring White House chief of staff Mark Meadows, furthering Trump’s lies that the free and fair vote was marred by nonexistent fraud, according to copies of the messages obtained by The Washington Post and CBS News.

“The majority knows Biden and the Left is attempting the greatest Heist of our History,” Thomas wrote.

She also urged lawyer Sidney Powell, who promoted false claims about the election, to be “the lead and the face” of the Trump legal team.

In the same period, Powell brought cases to the Supreme Court, which were denied without any noted recusals or dissent.

The court, with Thomas participating, also threw out a challenge from Texas calling on the justices to temporarily set aside electoral votes from four states Biden won — enough votes to potentially undo the outcome. Trump sought to join Texas' side in the case.

Democratic Sen. Ron Wyden of Oregon said Thomas should not take part in any future cases about the Jan. 6 investigation or the 2024 election, should Trump decide to run again.

“Judges are obligated to recuse themselves when their participation in a case would create even the appearance of a conflict of interest. A person with an ounce of commonsense could see that bar is met here," Wyden said in a statement.

But Arthur Hellman, a University of Pittsburgh ethics expert, said the Thomas situation reflects the progress women have made in pursuing their own careers and not living in the shadow of their husbands. Judges should distinguish between cases in which their spouses take part and issues on which they have been active, Hellman said. Only the first category requires recusal, he said.

“It’s not absolute. There may be some cases in which the issue is so directly involved in the case that the judge ought to recuse,” Hellman said. “I don’t think I see that in the Ginni Thomas situation.”

Ginni Thomas, for her part, downplayed any potential conflict in an interview with the conservative Washington Free Beacon earlier this month, before the text messages' publication. “Like so many married couples, we share many of the same ideals, principles and aspirations for America,” Thomas said. “But we have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

The revelations about Thomas' texts come at a time when groups have already been calling for ethics guidelines for justices. Congress has also been looking at the issue.

Under federal law, federal judges, including Supreme Court justices, are supposed to recuse themselves when they previously participated in a case or have a financial interest in it or when a close relative is involved. A judge is also supposed to do so “in any proceeding in which his impartiality might reasonably be questioned.” But that's open to interpretation.

Gabe Roth, of the court transparency group Fix The Court, said an ethics code would help the justices make consistent decisions about recusals. “Every justice sees their own ethical obligations different from one another. There should be some hard and fast rules that everyone follows,” Roth said.

Three years ago, Justice Elena Kagan told a congressional committee that Chief Justice John Roberts was considering whether the court needed its own ethics guide. Nothing has happened since.

Roberts noted in 2011 that the Supreme Court is different from lower courts because no one can step in if a justice recuses. In his year-end report, Roberts wrote that means a justice “cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”

Of course, justices and other judges decide from time to time that they cannot participate in a case because a close relative is involved. Early in his Supreme Court tenure, Thomas sat out a case in which the court ended the Virginia Military Institute's exclusion of women. His son from his first marriage, Jamal, was a VMI student at the time.

Justice Stephen Breyer routinely doesn't take part in cases decided in the lower court by his brother, U.S. District Judge Charles Breyer. Last year, Justice Brett Kavanaugh recused himself from a case when the court left in place a $2 billion verdict in favor of women who claim they developed ovarian cancer from using Johnson & Johnson talc products. Kavanaugh offered no explanation, but his father, E. Edward Kavanaugh, had earlier headed the trade association that lobbied against labeling talc a carcinogen and including a warning label on talc products.

Roberts and his wife dealt with a potential controversy in a different way. Jane Roberts stopped practicing law and left her position as the unpaid legal counsel to an anti-abortion group, Feminists for Life of America, after her husband became chief justice.