Justices decide for themselves when to step aside from cases

Mar 25, 2022, 3:36 PM | Updated: 3:47 pm

WASHINGTON (AP) — 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 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.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


Chinese spy balloon flies above in Charlotte NC, United States on February 04, 2023. The Pentagon a...
Associated Press

US downs suspected Chinese spy balloon off the Carolina coast

The United States on Saturday downed a suspected Chinese spy balloon off the Carolina coast after it traversed sensitive military sites.
15 hours ago
A man works at an avocado orchard in Santa Ana Zirosto, Michoacan state, Mexico, Thursday, Jan. 26,...
Associated Press

Route to Super Bowl dangerous for Mexico’s avocado haulers

SANTA ANA ZIROSTO, Mexico (AP) — It is a long and sometimes dangerous journey for truckers transporting the avocados destined for guacamole on tables and tailgates in the United States during the Super Bowl. It starts in villages like Santa Ana Zirosto, high in the misty, pine-clad mountains of the western Mexico state of Michoacan. […]
15 hours ago
Associated Press

Iraqi currency crash halts after meeting with U.S. official

BAGHDAD (AP) — Iraq’s currency ended its nosedive after a meeting between the Iraqi Central Bank head and a top U.S. Treasury official. Under Secretary of the Treasury for terrorism and financial intelligence Brian E. Nelson said in a statement Saturday that he had met with Central Bank of Iraq Governor Ali al-Allaq in Istanbul […]
15 hours ago
Associated Press

Gas prices dip in NJ, around nation as cold weather returns

TRENTON, N.J. (AP) — Gas prices dipped in New Jersey and around the country at large as cold weather descended on parts of the nation following an unusually warm January. AAA Mid-Atlantic says the average price of a gallon of regular gas in New Jersey on Friday was $3.42, down three cents from last week. […]
15 hours ago
Associated Press

Kansas police responding to overdose call shoot, kill man

KANSAS CITY, Kan. (AP) — Police in Kansas say an officer shot and killed an armed man after he fled from the scene of an opioid overdose on a bicycle. The Kansas City, Kansas Police Department said in a news release that officers spotted the man pedaling away Friday night from a home where they […]
15 hours ago
FILE - A Tesla Model Y Long Range is displayed on Feb. 24, 2021, at the Tesla Gallery in Troy, Mich...
Associated Press

Tesla hikes price of Model Y after US alters tax credit rule

DETROIT (AP) — Tesla has raised prices on its Model Y in the U.S., apparently due to rising demand and changes in U.S. government rules that make more versions of the small SUV eligible for tax credits. The Austin, Texas, electric vehicle company bumped up the price of the Model Y Long Range version by […]
15 hours ago

Sponsored Articles

Day & Night Air Conditioning, Heating and Plumbing

Company looking for oldest air conditioner and wants to reward homeowner with new one

Does your air conditioner make weird noises or a burning smell when it starts? If so, you may be due for an AC unit replacement.
Day & Night Air Conditioning, Heating and Plumbing

Prep the plumbing in your home just in time for the holidays

With the holidays approaching, it's important to know when your home is in need of heating and plumbing updates before more guests start to come around.
(Desert Institute for Spine Care photo)...

Why DISC is world renowned for back and neck pain treatments

Fifty percent of Americans and 90% of people at least 50 years old have some level of degenerative disc disease.
Justices decide for themselves when to step aside from cases