In a Supreme Court term packed with pressing cases, the decision by Colorado’s highest court to bar former President Donald Trump from the GOP primary ballot will skip the line, the court announced Friday afternoon. But there is no world in which this momentous case can be fairly heard by all nine justices.
There is no world in which this momentous case can be fairly heard by all nine justices.
Justice Clarence Thomas has reportedly committed numerous ethical lapses over his years on the high court. He’s heard cases involving his wife, Ginni Thomas, and her political work; he’s taken lavish gifts from a billionaire benefactor with business before the court; he’s neglected to list those gifts on documents meant to provide much needed transparency to the judicial process. But there’s no question that refusing to recuse himself from any decision regarding the Colorado case would be the greatest betrayal of his oath to “faithfully and impartially discharge and perform all the duties incumbent” upon him as a justice of the Supreme Court.
Both the voters who successfully sued to have Trump barred under the 14th Amendment and the Colorado Republican Party asked the justices to move quickly to hear the case and issue a swift ruling. The justices agreed on Friday to hear arguments from the parties on Feb. 8. But the clock is ticking, as the state, which votes almost entirely via mail, needs to prepare the ballots to be sent to residents by Feb. 12 for the primary.
Ahead of the court’s decision, a group of House Democrats on Thursday sent Thomas a letter demanding that he recuse himself from the Colorado case, known as Anderson v. Griswold, specifically citing Ginni Thomas as a factor. While Trump himself appointed three of the nine justices to the bench, a recent NBC News analysis documented that the court’s conservative supermajority still doesn’t always rule in his favor. But the level of connection that Ginni has to Trump himself and the movement that attempted to help him overturn the 2020 election’s results elevate her to a genuine cause for alarm.
In making their case, the Democrats, led by Georgia Rep. Hank Johnson, cite the Supreme Court’s newly developed Code of Conduct to show that Thomas still needs to step aside. The code, issued largely in response to the allegations of impropriety from Thomas, isn’t perfect, but its section on recusal clearly applies in this case as Thursday's letter makes clear:
“A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” The Code details such instances, including those in which “The Justice knows that the Justice…or the Justice’s spouse… has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding,” or those in which “The Justice or Justice’s spouse…is known by the Justice:…(iii) to have an interest that could be substantially affected by the outcome of the proceeding.”
The letter homes in on the financial gain at stake for the Thomases should Trump be allowed to run and potentially win. It “is foreseeable that your wife’s earning capacity will be positively impacted should the Court grant the relief sought by the former president,” the letter reads. “Your wife’s income benefits your household, therefore your family, and by extension you personally. You have a financial stake in the outcome of this case, which disqualifies you from any involvement in it.”
It may be that Democrats attempting to pressure Thomas into recusing himself are shouting into the wind.
Anderson v. Griswold is just one of several cases related to Trump and the Jan. 6, 2021, attack on the Capitol that Thomas could weigh in on in the coming months. The justices also will hear a case determining the scope of a federal statute used to prosecute hundreds of Jan. 6 rioters that could undercut the federal election interference charges against Trump. And they may still end ruling on Trump’s immunity arguments in that case, after last month denying a request from special counsel Jack Smith to jump the line in the usual appeals process.
Thomas has so far given no indication that he’ll step aside during those cases and there was none present inside the brief order agreeing to hear the case. Though the note rejecting Smith’s request did not indicate how each justice voted, it also didn’t include any declaration of recusal. The only Jan. 6-related case where Thomas has recused from involved former Trump campaign legal adviser John Eastman. (The court denied Eastman’s petition to hear the case.) Though the justice did not explain his reason, Eastman had served as a clerk for Thomas — a connection that, we can all agree, is not as close as a spouse.
It may be that Democrats attempting to pressure Thomas into recusing himself are shouting into the wind. The court’s new ethics code has no enforcement mechanism beyond the justices themselves. There’s nothing to indicate that Chief Justice John Roberts, despite his sensitivity to the court’s standing with the public, will step in to try to influence his older colleague. But it’s important that we not pretend that there is anything remotely justifiable about allowing an unelected justice to unethically allow a threat to democracy, like Trump, onto the ballot.
