Opinion: Clarence Thomas’s conflict is clear — he must recuse himself from the Trump immunity case

Opinion: Clarence Thomas’s conflict is clear — he must recuse himself from the Trump immunity case

Much ink has been spilled documenting Justice Clarence Thomas’s ethical improprieties and the damage they do to the standing of the court on which he sits. But the Supreme Court’s decision to hear Donald Trump’s immunity case adds new urgency to an already troubling situation: Thomas has a clear conflict of interest in the case and needs to recuse himself now.

Calls for him to do so already have come from people like Rep. Alexandria Ocasio-Cotez (D-N.Y.), Sen. Richard Durbin (D-Ill.), Sen. Sheldon Whitehouse (D-R.I.) and groups like Stand Up America, a democracy advocacy group. On Feb. 28, Stand up America simply tweeted, “Clarence Thomas must recuse himself from this case.”

Rep. Ocasio-Cortez had previously pointed out that the decision in the immunity case would “directly implicate his wife so this is one of the most classic, textbook conflicts of interest.”

Sen. Durbin, who chairs the Senate judiciary committee, said that “There are so many unanswered questions about the relationship of the justice and his family with the Trump administration that I think in the interests of justice, he should recuse himself.”

Sen. Whitehouse went into more detail about Thomas’s situation during a recent appearance on MSNBC. Whitehouse explained that if the Supreme Court were to find that the former president is immune from prosecution, it would end Jack Smith’s case and, in so doing, insulate Thomas’s wife, Ginni Thomas, from scrutiny about her role in Trump’s election interference efforts.

“There is,” Whitehouse argued, “a very direct conflict of interest. If he can help get rid of the case, he can protect his wife from the scrutiny of having her actions be evidence for the prosecution.”

But beyond these usual suspects, others are now joining in the effort to convince Thomas to step aside in the immunity case.

Faithful America, a not-for-profit organization made up of Catholics and Protestants and others not affiliated with any church or denomination, is circulating an online petition calling for Thomas to recuse himself. That petition cites the Supreme Court’s Code of Conduct, adopted on Nov. 13, 2023, which includes five ethical canons intended to guide justices’ behavior. It notes that Thomas signed the new code of conduct, which prohibits a justice from ruling in a case in which their “impartiality might reasonably be questioned.”

That code directs justices not to sit on cases when the “Justice’s spouse” has “an interest that could be substantially affected by the outcome of the proceeding [or] is likely to be a material witness in the proceeding.”

Beyond the violation of ethics, Newsweek quotes Reverend Nathan Empsall, executive director of Faithful America, who claims that “allowing Thomas to rule on Trump-related cases ‘is yet another example of the reality that the Christian-nationalist insurrection didn’t end on January 6.’”

“Protecting our democracy and freedom,” Empsall continued, “is key to protecting our Christian values of love, equality and justice—and if Justice Thomas fails to recuse himself, his relationships to Trump’s wealthy religious-right cronies…and his wife’s election denial could put that democracy on that line.” 

How will Thomas respond to these urgent appeals?

Los Angeles Times columnist Jackie Calmes argues that “There is little in Thomas’ recent past — very little — to suggest that he will” heed these calls. He has, she writes, “participated in several election cases and predictably shown favor to the Republican arguments.”

What’s more, Calmes writes, “there is nothing to force him to do the right thing in the vaunted new/not-new code of conduct that the Supreme Court reluctantly issued … after repeated stories of some justices’ — chiefly Thomas’ — misconduct.”

But Thomas’s participation in the immunity case is more than an ethical lapse. As Whitehouse reminded MSNBC viewers, it is a violation of federal law.

The law in question is 28 U.S. Code § 455, which covers “Disqualification of justice, judge, or magistrate judge.” It begins “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

It says that a judge, justice or magistrate shall disqualify himself when he “knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

That Ginni Thomas surely will be affected by what her husband’s court does in the Trump immunity case is already clear. We know that she had her fingerprints all over Trump’s effort to overturn the 2020 election and, despite her denials, Justice Thomas likely knows that.

Lawyer and blogger Elura Nanos says that “From reports that she called Joe Biden’s victory the ‘greatest Heist in our History,’ to her support of Sidney Powell as ‘the face’ of efforts to overturn the election results, to her admission that she attended the ‘Stop the Steal’ rally for Trump, Ginni Thomas has raised her voice in fervent support of Trump as winner of the 2020 election.”

Because Ginni Thomas sent many messages to then-White House chief of staff Mark Meadows urging the White House to try to overturn the election results, she would surely be an important witness in the election interference case against Trump that the immunity case seeks to derail.

Ethics and law be darned, Supreme Court justices are, ultimately, the arbiters of their own conduct. They don’t have a great record of stepping aside from hearing cases that come before the highest court in the land.

A study released last year found that “US Supreme Court justices recused themselves in roughly 3% of appeals since 2018.” And it noted that “Virtually all of the more than 750 recusals identified in a review of court orders lacked an explanation of why the justices avoided participating.”

Of course, Thomas may take his inspiration from the late Justice Antonin Scalia, who did not recuse himself from another high stakes political case, Bush v. Gore, even though one of his sons was a partner in the Washington office of Ted Olson, who represented Bush before the Supreme Court.

But whatever the court’s previous track record, too much is at stake both for the country and the Supreme Court to let Justice Thomas turn a blind eye to his ethical and legal obligation to recuse himself from the Trump immunity case.

In the unlikely event that Trump wins that case, it would add impetus to the authoritarian drift in this country. And whatever the outcome, Thomas’s behavior is sure to diminish the Supreme Court’s already damaged standing with the American people.

With so much at stake now, one is tempted to borrow from what 75 years ago stopped Wisconsin Sen. Joe McCarthy and ended his corrupt crusade to root out communist sympathizers from the government, in the hope that it would stop Justice Thomas in his tracks.

Justice Thomas: “You have done enough. Have you no sense of decency?”

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.

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