Supreme Court Justice Clarence Thomas is facing escalating calls to recuse himself from upcoming cases centered on former President Donald Trump’s efforts to overturn the results of the 2020 election.
The requests gained new urgency in recent days as consequential cases related to Trump speed toward the high court. Critics – including Democrats in the House and Senate – say Thomas’ wife’s publicly documented efforts to challenge the 2020 election results should disqualify him from making decisions on pivotal issues related to the Jan. 6, 2021 attack on the U.S. Capitol.
Associate Justice Clarence Thomas
Thomas, who was appointed by former President George H. W. Bush, has garnered a reputation for refusing to back down to his critics. But legal experts said it will be more difficult for Thomas to ignore the requests to abstain from participation in the Trump cases this time – particularly considering provisions of the Supreme Court’s new code of ethics.
“Under the standard in the new Supreme Court code, an objective, unbiased observer would question whether Justice Thomas can be objective in a case so closely related to his wife’s political interests,” said Steven Lubet, a judicial ethics expert at Northwestern University’s Pritzker School of Law.
The code, released in November, was signed by all nine justices. It includes a section saying a justice should recuse him or herself if their “impartiality might be reasonably questioned.” The code specifies that a justice’s spouse having an “interest that could be affected substantially” by a case or who could be a “material witness in the proceeding” would be grounds for recusal.
NO PRECEDENT
The Trump cases will have massive repercussions for the upcoming presidential election, determining whether Trump could be disqualified from the race or face trial and possibly prison time for his actions on Jan. 6, when he egged on a mob that stormed the Capitol as Congress was certifying the 2020 election results.
There’s no historical precedent for the existential questions facing the court, Lubet said.
Trump this week vowed to seek Supreme Court review after Colorado’s top court said he is disqualified from the 2024 ballot due to his incitement of the Jan. 6 attack, citing the Constitution’s 14th Amendment, which bars insurrectionists from holding office. And the high court will soon weigh in on whether Trump can claim absolute immunity from prosecution over actions he took while he was president. The former president has vowed to escalate other cases against him to the Supreme Court as well.
Thomas’ wife, Ginni, was involved in efforts to try to overturn the 2020 election results. She attended the pro-Trump rally that preceded the Jan. 6 attack, sat on the board of a conservative political group leading the “Stop the Steal” movement, and traded more than two dozen texts with Trump chief of staff Mark Meadows, urging him to fight to overturn the results.
“Make a plan,” she wrote to Meadows, according to reports on evidence obtained by the House Jan. 6 committee. “Release the Kraken and save us from the left taking America down.” She also pressed lawmakers in Arizona and Wisconsin to help with the effort to undo Trump’s loss.
So far, Thomas has not commented publicly about his wife’s involvement. Thomas didn’t immediately respond to a request for comment made through the Supreme Court’s public affairs office.
GRAVE PROCEEDING
A group of eight House Democrats and several senators, including Sen. Richard Blumenthal, D-Conn., called on Thomas to recuse himself this week due to Ginni’s highly public role on Jan. 6.
“No proceeding could be graver than the prosecution of an attempt to undermine our sacred electoral process,” Blumenthal wrote in a letter to Chief Justice John Roberts on Thursday. “Justice will be done only if such a case is heard by judges whose impartiality cannot reasonably be questioned.”
The House Democrats pointed to the clause in the new code of ethics related to justices’ spouses.
Sen. Sheldon Whitehouse, D-R.I., stopped short of calling for Thomas to recuse himself but said it “makes sense that people are asking this question, given the lingering questions about his wife’s role in the insurrection.”
Thomas has resisted calls to recuse himself from cases related to Jan. 6 before. Last year, he was the only justice to signal support for Trump’s legal arguments when the former president tried to prevent a committee investigating the Capitol attack from accessing White House documents. The court rejected Trump’s request.
Thomas’s supporters are dismissing the recusal pressure. Mark Paoletta, an ally of Thomas and Ginni Thomas’ lawyer, tweeted there is “no reason for Thomas to recuse because of his wife’s political views.”
In October, Thomas recused himself for the first time from a Jan. 6 case brought by former Trump adviser John Eastman, who was previously Thomas’ law clerk.
Richard Painter, who served as the chief White House ethics lawyer under President George W. Bush, said Thomas’s fellow justices could step in now to pressure him to recuse himself.
“This is a very precarious situation for our democracy,” Painter said.
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