Those who care about the integrity of the Supreme Court should be cautious in advocating for a mandated code of ethics. The highest court in our land should not need a lesson in ethical standards, right?
And yet it's tempting. Of special concern at the moment is Associate Justice Clarence Thomas, the longest serving member of the court. His failure to recuse himself from a recent ruling on White House records is fueling the kind of skepticism toward the court and its impartiality that the justices claim to abhor.
That case concerned efforts by former President Donald Trump to block the release of records surrounding the attack on the U.S. Capitol on Jan. 6, 2021. Although not among the records involved in that dispute, a couple of dozen text messages related to the effort to overturn the election have come to light between Mark Meadows, Trump's last chief of staff, and Ginni Thomas, a conservative activist who happens to be married to Justice Thomas. In those texts following the 2020 election, Ginni Thomas exhorted Meadows to keep up the fight, stall for time, and stop President-elect Joe Biden from assuming office.
It's no surprise that Trump's team wanted to keep records private. But it is surprising, and disturbing, that when the Supreme Court refused the ex-president's request, one justice registered his dissent: Clarence Thomas.
The standards that apply to every other kind of federal judge make clear that jurists must stand aside when a case presents them with a conflict of interest, or when it even appears to do so. Thomas' defenders insist that he is free of any conflicts. They make the reasonable point that the activities of a justice's spouse should not be presumed to render him or her incapable of an impartial judgment.
Their argument becomes tenuous, though, when it concerns the mere appearance of a conflict.
Consider this excerpt from the commentary included in the Code of Conduct for United States Judges: "A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct."
If Clarence Thomas were an ordinary federal judge, he would be in clear violation of the code of conduct. A reasonable person could easily conclude that his desire to protect the records — an inclination that put him at odds with every other member of the court — reflected a wish to protect his spouse. His failure to recuse himself in such a case brings the integrity of the court into doubt.
As Prof. Veronica Root Martinez of Notre Dame Law School argued in 2020, the Supreme Court depends for its authority on its perceived integrity. "The Supreme Court has power because we have all chosen to submit to its power," she wrote. "It has no army. It cannot enforce its own pronouncements. What it has is our perception that its rulings are legitimate, and because we view its work as legitimate, we comply."
To maintain and enhance that legitimacy, she says, the court should adopt a code of ethics. We agree.
Some in Congress would go further, and support legislation to impose such a code on the court. We stop short of that position, for two reasons: First, because the Supreme Court is a coequal branch of the federal government, and therefore should be kept as much as possible free of congressional control. Second, because the most eloquent expression of the high court's integrity would be for it to promulgate such a code itself.
Professional organizations — doctors, lawyers, journalists — police themselves. The Supreme Court should do the same, openly and transparently. And if Clarence Thomas needs to be held accountable, the court itself should do it.
