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Clarence Thomas is exploiting the ethical loophole and how to stop him

The Jan. 6 committee highlights a code of ethics that should be mandatory for all the justices on the Supreme Court.



A more fundamental question arises as the Roe decision reverberates across the United States, further undermining the notion that we live in a country where the law is supreme and not just politics rules. Can the Supreme Court of the United States do anything to prevent a full-blown partisanship crisis? With the release of the court’s final decision, public trust in the court has fallen to an all-time low, undermining the legitimacy of an institutional pillar of American democracy that is now under attack. The public was already reeling from the leak of the Roe draft opinion earlier this spring.

Lawyers committed to upholding the rule of law, such as John Eastman, Rudy Giuliani, Sidney Powell and Cleta Mitchell, have taken the lead in this siege. There are a number of these lawyers currently being investigated by bar associations, which have the authority to grant professional licenses and revoke them if they find that the basic rules of lawyer ethics — which prohibit making false statements, assisting in crime or fraud, and not exercising independent judgment — have been violated by any of these lawyers. The public record shows that there is a strong case to be made for punishing Trump’s legal team.

Isn’t there a Supreme Court justice in the mix? Even more remarkable is that justices are not subject to the same ethical standards as other members of the judiciary. Their lack of compliance with the Code of Conduct for United States Judges puts them in direct conflict not only with other judges but also with lawyers who are held to the same ethical standards as other federal judges.

But the Supreme Court is exempt from the provisions of that code, which is rather unusual. Congress appoints federal district court judges, so this makes sense. Supreme Court justices in contrast derive their authority directly from Article III of the Constitution, which stipulates that they may serve for as long as “good behavior” is demonstrated and that they may only be removed by impeachment.


A more practical question arises from this sound constitutional argument: Why don’t the justices simply agree to formally opt in to the code? As a matter of conscience, the judges voluntarily follow it, and we should have faith in them to do so. “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” wrote Chief Justice John Roberts in his 2011 judicial report.

Confidence, on the other hand, is no longer sound (if ever it was). Due to the patriotic work of the Jan. 6 committee, there has been a recent outpouring of proof, which violates the spirit, and possibly even letter, of the code the justices purport to follow. This further demonstrates the need for such a code to be a national priority at this time.

However, Ginni Thomas’s role in the court’s recent woes may not be solely to blame. While working with anti-Roe activists, Ginni Thomas was granted unusual access to Trump’s White House, where she promoted anti-LGBTQ policies and advanced extreme religious views. A coordinated anti-Roe effort to entertain the justices, including Thomas, is now known to have taken place.

Ginni Thomas, Trump’s chief of staff, texted Mark Meadows: “Release the Kraken and save us from the left taking America down.” After Trump’s lawyers launched outrageous “Kraken” lawsuits alleging Antifa conspiracies and rigged voting systems, To keep the bogus lawsuits, Meadows was advised by her to continue. “There is a heated fight underway” over whether the Supreme Court should intervene in the Wisconsin election fraud case, former Thomas law clerk John Eastman claimed in a letter to a Trump campaign lawyer a few weeks later.


The group CNP Action, whose board of directors Ginni Thomas served on, devised a new strategy in the wake of the election cases that were settling in the courts. Using the Council for National Policy’s political advocacy arm, CNP Action, the group pushed for the appointment of a fictitious slate of pro-Trump electors in five key battleground states where Biden had won the Democratic presidential nomination. On the basis of the fake slates, Eastman’s infamous legal memo to the president argued that Vice President Mike Pence could refuse to certify the valid Biden electors on January 6.

Meadows worked with leaders of various far-right conspiracy groups to plan a show of force on January 6 to “Stop the Steal” in order to put pressure on Pence to carry out this plan. The rally was organized by Turning Point USA, with Ginni Thomas serving as a mediator between the various groups involved.

As stated in the federal code of conduct, judges must protect the “integrity and independence” of the judiciary, “avoid impropriety and the appearance of impropriety,” and refrain from extrajudicial activities that “reflect adversely on the judge’s impartiality.”.

Every single one of these principles would seem to be violated by Thomas’ involvement in any case involving the lobbying of his wife or Trump’s attempt to overthrow the election. Thomas’ judicial impartiality and independence from political influence were severely tarnished by his wife’s public campaigning on issues that were likely to be reviewed by the Supreme Court. His position necessitates that he stay as far away from politics as possible when performing his duties on the court. As a result, his wife should be required to stop actively lobbying and he should refrain from publicly associating himself with her causes. On the other hand, he’s done it before and has done it again.


It is also a stunning blow to the court’s legitimacy when the wife of a sitting Supreme Court justice is found to be actively campaigning to undermine a presidential election. Thomas is unlikely to have been unaware of her actions. Just how much her husband knew may still be discovered by the committee on January 6. There will be no effect on the final ethical analysis, which states that even the appearance of improper behavior should disqualify a candidate. There must be something else wrong with this that a reasonable observer doesn’t see.

When it comes to cases in which his wife’s interests would be “substantially affected” by his participation in the case brought by Trump to block the Jan. 6 committee from obtaining White House records, Thomas appears to have already disregarded his ethical duty to recuse himself. At this point, there is nothing to stop him from doing so again.

Despite the threat to judicial independence, there is no consensus on how to proceed. It is proposed in the House that the Supreme Court adopt its own code of conduct under the 21st Century Courts Act.

It’s possible that a Supreme Court Code of Ethics would have no effect at all, but that’s because some people question whether Congress has the constitutional authority to regulate the court. As long as the justices retain their independence, they will have little incentive to enforce consistent and rigorous internal ethics policies. An ethics code would still be a powerful symbolic statement, despite the fact that justices would still be judge and jury over their own conduct. There is no lawyer who is above or who gets to decide what professional values are.


In addition, a code of ethics would lead to greater public scrutiny. Having the ability to call out violations of an applicable rule would increase the pressure on ethical compliance. In the same way that senators currently question judges about whether or not they will follow precedent, they could elicit commitments from nominees to follow the letter of a code during confirmation hearings. However, we know that promises to do so are frequently broken.)

Using a code as a weapon by justices to gain advantage in pending cases is a second objection to it. In his 2011 report, the Supreme Court’s chief justice stated that having to review and enforce ethics violations “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.” This argument, while sound in theory, paints a bleak picture of the Supreme Court of the United States. We are in grave danger of losing our democracy if the nation’s highest court justices are unable to put their partisanship aside and rule impartially on whether or not an individual’s recusal from a case is appropriate.

Those who defend their unjustified efforts to assist Donald Trump in seizing control of American democracy and driving it off a cliff face an ethical crisis that has gripped the legal profession in America. The Supreme Court’s reluctance to hold itself accountable to ethical standards should not be separated from these efforts. The Constitution itself confers authority on the justices of the Supreme Court. How can we expect other lawyers to follow suit if these lawyers cannot be trusted to uphold their core professional values?