Supreme Court ethics push faces GOP buzz saw

Senate Republicans are skeptical of requiring a code of ethics in response to new scrutiny over Justice Clarence Thomas that has thrown momentum behind calls for more formalized ethics rules for the Supreme Court. 

The issue has bubbled up in the wake of reports that Ginni Thomas, the justice’s wife, urged former White House chief of staff Mark Meadows to find a way to overturn the 2020 election. Their text messages, handed over by Meadows to the House select committee investigating the Jan. 6, 2021, Capitol riot, put a new spotlight on Thomas’s rulings in cases tied to the panel’s investigation and the election. 

Though the idea is being embraced by top Democrats, to get through the Senate it would need the support of at least 10 GOP senators — a difficult climb.

“I’m uncomfortable with the idea of becoming overly prescriptive … particularly on Supreme Court justices. They generally have pretty good instincts about when to recuse and when not to,” said Sen. John Thune (S.D.), the No. 2 Senate Republican. 

“I just don’t think there’s a need for that, and I think that creates a lot of constraints on the Supreme Court that I think could be problematic long term,” he added. 

Sen. Thom Tillis (R-N.C.), a member of the Senate Judiciary Committee, said he would want to look at a specific proposal but questioned Congress stepping into the Supreme Court’s internal business.

“I get a little bit uncomfortable — I don’t like it when the Article III branch tells us what to do, which they do from time to time,” Tillis said. 

“I’d like that branch to be self-governing in their recusal procedures. … That’s something I’d be inclined just to encourage them to look at, but certainly falls short of mandating it or overreaching,” he added. 

The Judicial Conference, of which John Roberts as chief justice is the presiding officer, has a code of conduct that outlines guidelines for judges, including that they should “uphold the integrity and independence” of the judiciary, that they should “avoid impropriety and the appearance of impropriety” and that they should refrain from political activities. 

But while that code applies to district and circuit judges, federal magistrate judges, Court of International Trade judges, Court of Federal claims judges and bankruptcy judges, it does not apply to Supreme Court justices. 

But members of the court have said they do consult the code of conduct, even if they aren’t bound by it. 

Roberts, in a 2011 end-of-term report, said that members of the court “do in fact consult the Code of Conduct in assessing their ethical obligations.” 

“In this way, the Code plays the same role for the Justices as it does for other federal judges since. … Every Justice seeks to follow high ethical standards, and the Judicial Conference’s Code of Conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary,” he added. Roberts also noted in the report that there’s a law on the books that outlines when judges, including Supreme Court justices, should recuse themselves from a case.

But Roberts also made the argument that Congress doesn’t have the constitutional authority to impose a code of conduct on the Supreme Court, saying that Article III of the Constitution “empowers Congress to establish additional lower federal courts that the Framers knew the country would need.”

Critics have been raising concerns that Ginni Thomas’s political activity poses an ethically troubling overlap with her husband’s judicial position. But the new reporting on her outreach to Meadows has raised fresh ethics questions about her husband’s handling of election-related cases. 

In January, the Supreme Court blocked former President Trump’s bid to keep administration records from being handed to the Jan. 6 committee. The decision was 8-1, with Clarence Thomas as the lone dissenter. It’s unclear if Ginni Thomas’s messages would have been in the White House records being disputed in court. 

Clarence Thomas also dissented in a February 2021 decision by the Supreme Court to turn away a challenge to Pennsylvania’s election results. He wrote that the decision was “baffling” and “befuddling.”  

That’s sparked new calls from Democrats for Thomas to recuse himself from future Jan. 6-related cases, as well as a new push for a formal code of ethics for the Supreme Court. 

“The justice of the Supreme Court has to at least have a code of ethics, A, and B, why should they have lower standards than members of Congress in terms of reporting and the rest?” House Speaker Nancy Pelosi (D-Calif.) told reporters during a weekly press conference. 

Senate Majority Leader Charles Schumer (D-N.Y.) separately told reporters, “I think there should be some kind of code of ethics for Supreme Court justices.” 

Sen. Chris Murphy (D-Conn.) has introduced legislation that would require the Judicial Conference to come up with a code of conduct to apply to the Supreme Court. The bill, as of Wednesday, was backed by 21 Senate Democrats, four of whom signed on amid the Thomas scrutiny. 

A similar bill in the House also got an additional 10 co-sponsors during the same time. 

And a group of House and Senate Democrats sent a letter to Roberts urging him to create a binding code of conduct for the court. 

“We request that Chief Justice Roberts commit no later than April 28, 2022 to creating a binding Code of Conduct for the Supreme Court—the only court in the country not currently subject to a judicial code of ethics—that includes (1) enforceable provisions to ensure that the Justices comply with this Code and (2) a requirement that all Justices issue written recusal decisions,” they wrote. 

At least some Republicans sound open to the idea of more formal ethics rules for the Supreme Court. 

GOP Sen. John Kennedy (La.), a member of the Judiciary Committee, said that he would be open to a discussion on legislation. 

“I don’t know if we ought to impose it unilaterally on the Supreme Court. I think we ought to sit down with representatives of the court and explain our concerns. I think everybody’s for ethics in government, but I think we also need to be mindful of the fact that the Judiciary is a separate branch of government,” Kennedy said. 

Asked if he had concerns, aside from the current, largely Democratic pushback against Thomas, Kennedy said that he did. 

“I think on occasion a Supreme Court justice has criticized a presidential candidate or indicated a willingness to support a presidential candidate. I think that’s inappropriate,” Kennedy said. 

“I know Supreme Court justices give speeches often, or at least occasionally. They have to be careful with the context of their speech. If they’re not careful, they undermine the integrity of the judiciary,” he added. 

But any push to pass new legislation requiring the creation of a code of ethics for the Supreme Court directly in response to Thomas would likely spark fierce pushback. Republicans have stood by the justice as he’s faced new questions about why he didn’t recuse from previous cases. 

Senate Minority Leader Mitch McConnell (R-Ky.) called Thomas “a great American” and an “outstanding justice” during a floor speech this week and took aim at Democrats. 

“This clumsy bullying from the political branches is really beyond the pale. Justice Thomas is an exemplary jurist who has modeled fidelity to the rule of law for more than 30 years and counting,” McConnell added.