Close the ethics gap at the U.S. Supreme Court

The revelation that political activist Ginni Thomas pushed to overturn the 2020 presidential elections must have consequences. It is ludicrous to believe that Thomas’ husband, U.S. Supreme Court Justice Clarence Thomas, can fulfill his legal obligation to impartially judge cases related to former President Donald Trump’s quest to throw out a democratic election when his wife was part of that very effort. 

Yet Thomas alone gets to decide whether to recuse himself and so far has not, highlighting a glaring need for better ethical oversight of the nation’s highest court. This unique lack of accountability for nine justices dates from the earliest days of the nation and must be overhauled. In a March 28 letter to Justice Thomas and Chief Justice John Roberts, U.S. Rep. Pramila Jayapal, D-Seattle, and Democratic colleagues from the House and Senate Judiciary Committees rightly demanded Thomas recuse himself from cases related to the Jan. 6 attack on the Capitol because of his wife’s documented efforts to throw out the election results. 

Justice Thomas already has participated in one case known to have a problematic entanglement: His was the only no vote in the court’s January ruling that Trump could not block release of White House records related to the Jan. 6 riot. Since that decision, a trove of unhinged text messages between Ginni Thomas and Trump chief of staff Mark Meadows have come to light. In them, she falsely painted the presidential election as a “heist” and a “coup” — citing no actual evidence — and pressed for resistance to the democratic transition of power.

Jayapal, who is the only member of Washington’s congressional delegation on a judiciary committee, and her colleagues should make a political crusade of creating ethical guardrails for justices’ behavior, as their letter requests. This is not a new concept. Three years ago, Justice Elena Kagan told a House committee that Chief Justice John Roberts was studying whether to institute a formal ethics code. Roberts must now make good on that prospect. The Thomas situation shows why the high court’s members cannot be left to their own devices to evaluate when a case is too close to home.

Supreme Court justices at each end of the political spectrum have taken undue advantage of their own self-governance. Liberal Justice Ruth Bader Ginsburg ruled on cases involving companies with connections to her husband’s work as an attorney. Conservative Justice Antonin Scalia declined to step down from cases involving Vice President Dick Cheney, with whom Scalia had joined on a duck hunting trip to Louisiana.

It is alarming that state supreme courts, including Washington’s, have better ethical standards than the highest court in the country. The Washington Commission on Judicial Conduct, which voters approved with a constitutional amendment in 1980, provides a mechanism to investigate alleged problems with judges or justices statewide. When its recommendation is focused on a state Supreme Court justice, a panel of appeals-court judges decides the case. A similar federal system ought to be in place to hold justices accountable for ethical transgressions, such as a failure to recuse oneself. That no such ethical guardrails are in place suggests that Supreme Court justices are taking advantage of the long odds against Congress amending the U.S. Constitution to require formal accountability, University of Washington law professor Hugh Spitzer said.

“There’s just no excuse for the Supreme Court not subjecting itself to ethics review,” Spitzer told the editorial board. 

Winning appointment to the U.S. Supreme Court should not make a justice unaccountable for professional conduct for life. The recusal process needs a thorough overhaul. It should include transparency for the reason a justice declines to take part in a case, and a system to compel recusal for egregious conflicts of interest. But those actions can only follow the creation of clear, enforceable rules. Roberts’ failure to show progress toward this necessary goal has now been followed by definitive evidence of what a failure to get there can mean. The court must show it values the public’s trust by providing, in writing, the ethics it will maintain.