Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion articles on CNN.
The biggest threat to the legitimacy of the United States Supreme Court is not its potential expansion, nor even what seems to be a likely reversal of Roe v. Wade in what would be a devastating scaling-back of women’s rights.
It’s Ginni and Clarence Thomas.
Virginia “Ginni” Thomas, who is married to Supreme Court justice Clarence Thomas, has become an increasingly visible and increasingly radical far-right activist at the same time that her husband has pushed Supreme Court jurisprudence far to the right. Clarence Thomas has crossed a whole series of ethical lines related to his wife’s work, and it’s far past time for Congress to act. We need a basic ethics law that sets out transparency rules for organizations that file amicus briefs to the Supreme Court, and standards for recusal among Supreme Court justices.
Ginni Thomas works directly with organizations that are taking cases to the Supreme Court – cases that will be heard and decided by her husband. In a groundbreaking story published earlier this year, the New Yorker’s Jane Mayer detailed the many ways in which Thomas is heavily involved with a number of cases heading to or already heard before the Supreme Court. She is tied to groups that have written amicus briefs supporting the conservative side of Supreme Court cases on everything from immigration to abortion rights to affirmative action. In some cases, she serves on a group’s advisory board. In others, her consulting group has been paid by the same people whose names appear on amicus briefs filed with the Court. And in others, partners in one of her advocacy organizations have petitioned the Court or filed amicus briefs before it on a variety of matters.
And in another shocking story published in the New York Times Magazine this week, reporters document the Thomases mutual involvement in right-wing organizing, and their work to shift Supreme Court jurisprudence radically rightward. (Both Clarence and Ginni Thomas declined to be interviewed for the New Yorker piece, and both declined to comment for the New York Times piece).
Judges are supposed to evaluate cases impartially. Given his wife’s involvement, there is no way for the public to trust that Thomas will impartially judge the cases she’s tied to. And Thomas himself has defied a whole series of ethical guidelines that apply to every other judge in the country, appearing at events for right-wing organizations and causes, and, according to the Times report, being in contact with at least one conservative politician, Florida governor Ron DeSantis, at the same time he was facing battles in federal court (DeSantis did not respond to the Times’ request for comment).
The spouses of Supreme Court justices shouldn’t be forced to quit their jobs or change their career paths, and are entitled to their own political views. But the justices themselves – like any other judge on the bench – are imbued with the public’s trust and all of the obligations that come with that. That Clarence Thomas has made no effort to recuse himself from cases in which his wife has an interest is profoundly unethical. It threatens the public’s already-waning trust in the Supreme Court because of the appearance of impropriety and conflicts of interest – not to mention the potential for actual impropriety and conflicts of interest.
There is one clear and obvious path here: Clarence Thomas should recuse himself from all cases his wife has involved herself in.
But Thomas has already heard and decided cases that his wife has involved herself in. He has already demonstrated that he does not hold himself to the same ethical standards set forth for judges by the American Bar Association’s Model Code of Judicial Conduct. This is why Congress has to step in. The Supreme Court is rightly largely unencumbered by the other branches of government. But Supreme Court justices should not be entirely free to flout the ethical norms and rules of their profession.
While some Democratic members of Congress have at least put pen to paper and written basic legislation requiring transparency in judicial lobbying and ethical behavior from Supreme Court justices, neither law has moved forward. There simply doesn’t seem to be a sense of urgency from lawmakers or from the public – and Republicans are largely unsupportive of imposing ethical rules. Neither bill has a single Republican co-sponsor.
A foundation already exists for Congress to build upon. Ethical guidelines are already written by the American Bar Association. The federal courts also have an ethical code of conduct applicable to every single judge on the federal bench – except for the nine who sit on the Supreme Court. Congress should apply these ethical rules, with legal binding, to the Supreme Court, too. And they should do so now: While public outrage may build after a disastrous Supreme Court decision, by then it will be too late.
Both ethical codes make clear that if a judge’s spouse has a substantial interest in a case, then that judge should recuse themselves from hearing it. That is certainly the case with Ginni Thomas. And yet, her husband persists in hearing cases she has an interest in.
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The US is in a fragile state. Four years of Donald Trump have left us more divided than at just about any time in recent history. Trump has led a campaign of lies claiming that the 2020 election was stolen – an all-out falsity that many of his supporters, and many elected members of his own party, continue to push even after this Big Lie resulted in a deadly attack on the seat of American democracy (Ginni Thomas, it’s worth mentioning, has also agitated against the results of the 2020 election). Americans are distrustful of each other and increasingly distrustful of our most important institutions, including the Supreme Court.
A democracy is only as strong as its institutions and its elections. Representative democracies are defined by the right of the people to vote in free and fair elections; democracies need both public trust in those elections and strong institutions to survive. In the US, the public’s trust in our elections is low thanks to right-wing politicians who have intentionally undermined it, and our institutions have been badly battered. We need Clarence Thomas to put his country before his political beliefs and recuse himself from cases his wife is involved in. And if he won’t do that – and all evidence points to the conclusion that he won’t do that – then we need Congress to step up and make sure that all judges in America, no matter how powerful, are not above behaving ethically.