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Analysis

Ginni Thomas Texts Show Why the Supreme Court Needs a Code of Conduct

Supreme Court justices are the only judges in the country without a binding ethics code.

Last Updated: April 13, 2022
Published: March 30, 2022
Close-up black and white image of Supreme Court
Bill Chizek/Getty

The facts are simple yet jaw-drop­ping: Between the Novem­ber 2020 elec­tion and the Janu­ary 6 insur­rec­tion, Ginni Thomas texted White House Chief of Staff Mark Mead­ows 29 times, urging him to stop “the greatest Heist of our History.” One year later, Justice Clar­ence Thomas, Ginni’s husband, voted to block the release of White House records regard­ing the insur­rec­tion — records that likely include commu­nic­a­tions by his wife.

The imme­di­ate response should be clear: at a minimum, Justice Thomas should publicly explain what he knew about his wife’s commu­nic­a­tions with the White House, when he knew it, and why he parti­cip­ated in cases related to the insur­rec­tion and the results of the 2020 elec­tion. He should also pledge to step aside from any such cases going forward.

But a prom­ise to recuse is not enough. The Supreme Court is facing a crisis of public confid­ence, and the justices have shown again and again that they cannot be trus­ted to police them­selves. It’s long past time for a Supreme Court code of conduct — one that anti­cip­ates the poten­tial for lawless­ness by the justices them­selves.

Indeed, the law already requires recusal in Justice Thomas’s case, stat­ing that justices must step aside from “any proceed­ing in which [their] impar­ti­al­ity might reas­on­ably be ques­tioned.” The stat­ute also requires justices to step aside if they know their spouse or family member has an “interest that could be substan­tially affected by the outcome of the proceed­ing.” Thomas himself clearly knows this law, having recused six times from cases involving Wachovia while his son worked for the bank.

So why didn’t this law prevent Justice Thomas from hear­ing a case that could reveal his wife’s private commu­nic­a­tions with the White House? Partic­u­larly since ethics experts say the law requires Thomas to ask about his wife’s activ­it­ies, not inten­tion­ally avoid know­ledge so he can claim ignor­ance? As Chief Justice John Roberts has explained, the Supreme Court lets justices decide for them­selves whether they are conflic­ted. “I have complete confid­ence in the capab­il­ity of my colleagues to determ­ine when recusal is warran­ted,” said Roberts in his 2011 report on the state of the federal judi­ciary.

It is clear today that the chief justice’s trust is misplaced. First, the law does not ask whether justices consider them­selves conflic­ted, but whether an outsider might reas­on­ably think they are. Would anyone begrudge a member of the public ques­tion­ing Justice Thomas’s alle­gi­ances in this case?

Second, a series of contro­ver­sies beyond this one make clear that there is a long and troub­ling record of justices enga­ging in conduct that has eroded the public’s trust. This includes partisan speeches, lavish gifts, and recusal fail­ures by members of the Supreme Court, includ­ing a recent New York Times story detail­ing Justice Thomas’s parti­cip­a­tion in events hosted by conser­vat­ive activ­ists. As the advocacy group Fix the Court has docu­mented, in recent years every one of the sitting justices has faced scru­tiny for purpor­ted ethical lapses.

A code of conduct isn’t a cure-all, but having one could allow for more detailed guid­ance on when justices’ recusal is required. This could include better defin­ing when a spouse has an “interest” in a case and clari­fy­ing that poten­tial conflicts should be viewed not from the justice’s perspect­ive but from the public’s. A code could also set up other guard­rails to help restore public confid­ence in the Court, includ­ing address­ing when and how justices can parti­cip­ate in events with prom­in­ent politi­cians or other polit­ical figures — a common prac­tice, and one that research suggests the public views as inap­pro­pri­ate. The justices are the only nine judges in the United States who do not currently have to follow an ethics code.

A number of bills, sponsored by both Demo­crats and Repub­lic­ans, have sought to require a code of conduct for the Supreme Court. Crit­ic­ally, however, the Court does­n’t have to wait for Congress to act. The justices can — and should — adopt a code of conduct on their own to provide guid­ance, trans­par­ency, and account­ab­il­ity regard­ing ethical bound­ar­ies.

The Court must also require justices to explain their recusal decisions in writ­ing, allow­ing the public to assess for them­selves a justice’s explan­a­tion of why they are sitting on a case in which they have a seem­ingly obvi­ous conflict of interest.

Public trust in the Supreme Court is at an all-time low. Only 16 percent of adults say that the justices do a good or excel­lent job of keep­ing their own polit­ical views out of their decisions, accord­ing to a Janu­ary survey by the Pew Research Center. Yet this trust — and the public’s expect­a­tion that the Supreme Court’s decisions be followed — are the Court’s primary sources of author­ity.

Justice Thomas’s fail­ure to recuse reflects less a gap in the law than a lack of tools for hold­ing justices to it. A code of conduct and public explan­a­tions won’t solve the Court’s legit­im­acy crisis, but they would set expect­a­tions for the justices’ beha­vior. Clear stand­ards — and the accom­pa­ny­ing added public scru­tiny — would provide an incent­ive for judges to live up to them. It is urgent that either the Court or Congress put those tools in place.

UPDATE 4/13/22: On April 6, Congres­sional Demo­crats intro­duced legis­la­tion in the House and Senate that would impose new ethics and recusal rules on the federal judi­ciary and the Supreme Court. The bill would, among other things, require the Supreme Court to adopt a code of conduct within 180 days of enact­ment or be subject to the exist­ing code that applies to other federal judges. It would also codify new recusal stand­ards and require requests for a justice’s recusal to be reviewed by the full Court, a change from the current prac­tice of justices making indi­vidual decisions on recusal.