Supreme Court justices are remarkably unaccountable in America.
It turns out that as Justice Clarence Thomas was participating in cases relating to the 2020 election, and one case involving the House committee investigating the Jan. 6 insurrection at the Capitol, his wife, Virginia “Ginni” Thomas, had been in communications with the president’s chief of staff, Mark Meadows, about the election and then-President Donald Trump’s attempt to overturn President Joe Biden’s election win, text messages revealed this past week show.
Justice Thomas faced a tidal wave of criticism when the Washington Post and CBS News broke the news of the texts. His decision not to recuse himself from any of the cases raised a question: Can a justice be forced to recuse or step down?
The only certain, systematic method of accountability for a justice is impeachment.
Reporting in the New Yorker and New York Times in recent months about Ginni Thomas’ activism had led MSNBC’s Mehdi Hasan and the New Republic’s Michael Tomasky to call for Clarence Thomas’ impeachment even before the texts were revealed.
“The majority knows Biden and the Left is attempting the greatest Heist of our History,” Ginni Thomas wrote to Meadows on Nov. 10, 2020, according to the Post.
The news of the texts led to more calls, including from prominent legal ethics experts, for Thomas to recuse himself in any cases relating to the 2020 election; it also prompted some, like the New York Times’ Jesse Wegman, to urge Thomas to resign. The news also prompted more impeachment calls from the left, including in the Nation on Monday, and to a request from dozens of organizations on the left for the House Judiciary Committee to hold a hearing on the lack of a “binding code of ethics” on the justices. The House committee looking into Jan. 6, meanwhile, will be seeking an interview with Ginni Thomas, CNN reported Monday.
Now, as some of Clarence Thomas’ longest-held beliefs — on abortion, guns, affirmative action and more — appear to be nearing the majority position on the Supreme Court, he could find himself facing a public battle to justify some of his votes on the court.
No justice in U.S. history has ever been removed from office by way of impeachment. And only one — Samuel Chase in 1804 — has been impeached. (Chase was not convicted by the Senate and continued serving on the court for several years after his trial.) It would be more than 150 years before the threat of impeachment would lead a justice — Abe Fortas in 1969 — to resign from his seat.
What it means to impeach
The lack of accountability for justices is somewhat deliberate. An independent judiciary, the thinking went, requires it.
Alexander Hamilton described the judiciary in the Federalist Papers as “the least dangerous” branch because it lacks control over either “the sword or the purse” and that lifetime tenure — “during good behavior” — made sense because it is the best means “which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
Still, a justice can be impeached. Several lower court judges have been impeached throughout U.S. history. Eight have been removed from office, according to the Federal Judicial Center, including one appeals court judge.
The impeachment process for federal judges — and justices — works similarly to that for executive officials, including the president. Specifically, the House has concluded that “a Federal judge could be impeached for judicial conduct that is either criminal or a serious abuse of public duty, or for nonjudicial conduct that is criminal.”
The House Judiciary Committee investigates possible impeachments, generally through a House resolution asking for the committee to conduct an impeachment investigation. If the committee determines that it will be recommending impeachment, it also crafts articles of impeachment, which the full House debates and votes upon. If a majority of the House approves any of the articles of impeachment, the House then appoints managers to serve as, essentially, prosecutors in the Senate trial over those impeachment articles. The individual who has been impeached is able to present a defense, as, most recently, Trump did when he was impeached for a second time in conjunction with the Jan. 6 insurrection. Finally, the Senate votes; a two-thirds vote for conviction would result in removal.
Again, however, no Supreme Court justice has ever been removed from office following impeachment.
What other options are there?
The only other substantial limit placed on the justices — the federal recusal statute — lacks any actual method of enforcement. Further, while the Supreme Court claims to adhere to the statute’s restrictions that justices recuse themselves, generally, when their “impartiality might reasonably be questioned” or under specific circumstances like when they have a financial stake in a case or had worked on a case before joining the court, Chief Justice John Roberts, in 2011, explained three significant caveats to that.
First, he wrote in his year-end report that year that the statute might be unconstitutional as applied to the Supreme Court, noting “the limits of Congress’s power to require recusal have never been tested.” (A significant caveat!) Second, he noted that an individual justice’s decision about recusal cannot be reviewed because the Supreme Court doesn’t judge cases about itself and “there is no higher court” to do so. Third, he detailed what is described elsewhere as justices’ “duty to sit”: If a justice recuses themselves, as Roberts noted, “the Court must sit without its full membership,” unlike in the lower courts, where a recused judge can be replaced.
All of which is to say: There’s a recusal statute, and the justices say they follow it, but there’s no way to guarantee they do and no way to challenge it if they don’t.
The clearest example of this in the new century involved then-Justice Antonin Scalia. Back in the George W. Bush administration, Scalia refused to recuse himself from a case involving then-Vice President Dick Cheney’s energy task force, despite the fact that the two had gone duck-hunting together three weeks after the Supreme Court announced it would be taking the case. Although there was no way for any of the parties to challenge Scalia’s decision not to recuse, he did issue a rare statement explaining his decision — likely a result of the public attention the issue had gotten.
Supreme Court justices are not even covered by the Code of Conduct that other judges must adhere to — although Roberts, again, stated that the justices do “consult” the code when faced with ethical questions.
That leaves politics and the people. If the Constitution and existing laws don’t do the job, presidential proposals could be announced, legislative oversight hearings could be held, and legislation could be introduced. (Last year, the Biden administration did convene a commission to look at the Supreme Court. The resulting report didn’t take firm positions on many issues, although it did recommend the court adopt a formal code of conduct; regardless, it has mostly fallen by the wayside as the nomination of Judge Ketanji Brown Jackson took center stage.)
Even within some of those executive and legislative possibilities, however, the potential questions about separation of powers that Roberts discussed in his report likely would be debated — or lead to questions about the enforceability of the provisions. Softer pressure, in the form of public statements, is also a possibility. And, finally, there is public pressure — the only actual fallout over the controversies involving the Thomases thus far.
Thomas has been on the Supreme Court longer than any other sitting justice and has voted on thousands of cases since he joined the high court in 1991. This past week’s developments might put him in his most precarious position since the fight over his confirmation ended in a bitterly divided 52-48 confirmation. (Although it might seem unimaginable in today’s politics, many nominees have faced little opposition in the Senate. Scalia, for example, was confirmed 98-0, and Ruth Bader Ginsburg, 96-3.)
Thomas joined the court in the aftermath of what he called a “high-tech lynching” when he faced questions about Professor Anita Hill’s accusations of sexual harassment. Although he denied them, that changed the tenor of the start of his tenure on the court.
Since then, he’s had roughly three eras. Although Thomas has been a prolific writer since he joined the court, in his first 15 years as a justice, he often found himself alone in his opinions or joining with Scalia in staking out some of the court’s most conservative positions. He appeared to grow comfortable in that role, even in his second era, when Justice Samuel Alito joined the bench in 2006.
After Scalia’s death in February 2016, and with Hillary Clinton favored against Trump over the summer in the presidential race, it appeared that Thomas would be destined to continue in that role until he left the bench.
Of course, that isn’t what happened. Trump won, and Thomas, instead of being alone, has been joined by three more justices who appear to think, at least in some cases, more like him than even Roberts does. Now, after more than 30 years on the Supreme Court, Thomas is not only no longer alone — he’s finding himself in a conservative majority that includes (at least) five justices who appear ready, willing and able to jettison precedent when they wish.
Thomas remains on that court, asking questions at Monday morning’s oral arguments — albeit participating remotely following his recent hospitalization — and participating in the votes on which cases the justices will be hearing going forward.
History shows that those pressing for accountability from Thomas will be the exception if they succeed, not the rule. Because, as with so much when it comes to the Supreme Court, there are very few rules — and most of them are rules the justices make themselves.
Thanks to Lillian Barkley for copy editing this article.