A proposal by outside interest groups for the Supreme Court to adopt a new "model" ethics code could thrust Justice Clarence Thomas and his spouse, Ginni, further into the political limelight.
The proposed guidelines from so-called independent government watchdogs Project on Government Oversight and Lawyers Defending American Democracy would put in place "more stringent guidelines for recusal." The guidelines would be so strict that if they were in effect last year, it may have prevented the high court's eldest Republican-appointed justice, Thomas, from participating in a case involving the release of Trump administration records to the House committee investigating the Jan. 6 Capitol riot, according to a recent NPR report.
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"Such a provision would clearly have forbidden Justice Clarence Thomas from participating" in the 2022 case, NPR's Nina Totenberg reported Thursday.
Thomas was the single dissenter when the rest of the court refused former President Donald Trump's effort to block those records from disclosure, materials that later revealed Thomas's spouse communicated with top Trump White House officials, showing her calls for them to take actions to block certification of the 2020 election results that cemented President Joe Biden's victory.
The 27-page "Model Code of Conduct for U.S. Supreme Court Justices," published March 9, mentions the word "spouse" a total of 14 times and highlights on page five that "certain conduct by a spouse or other close family members of a Justice would require that Justice to recuse," according to a copy reviewed by the Washington Examiner.
While the report does not mention justices or their spouses by name, its greatest impact could be leveled at Ginni Thomas, a prominent conservative activist and attorney. Under the code, justices and their close family members would be barred from "exploiting the judicial position" and "engaging in political" activity that presents the appearance of partisanship.
Fix the Court, a left-wing judicial reform group that has called to enact term limits for justices, issued a press release backing the POGO and LDAD proposals and pointed out that the current code for lower court judges does not contain an express enforcement mechanism and neither does the proposed Supreme Court code.
"Spouses are mentioned 12 times in the current code for the lower court judges," Fix the Court founder Gabe Roth told the Washington Examiner while highlighting limitations of ensuring the justices and their families follow such a code.
"Two things can be true at the same time: One, there is value in having an ethics code that the justices can measure their behavior against and the public can measure the justices' behavior against. Two, it can be sort of operationally difficult to have a code without having some enforcement mechanism if the code is violated," Roth added.
In response to ethics-related questions, the Supreme Court's public information office has pointed to the Code of Conduct for United States Judges, which was first introduced in 1973 and is consulted by the nine justices on the bench. The Washington Examiner contacted the high court in response to the recent POGO- and LDAD-backed proposals.
The newly proposed guidelines coincide with recent reports that the high court has been struggling for years to determine a novel code of conduct for the current and future nine-member bench to abide by.
At the same time, justices and their spouses have become the topic of a number of media reports in recent months over alleged ethics concerns, including Chief Justice John Roberts. Boston-based attorney Kendal Price, an ex-colleague of Roberts's spouse, Jane, recently sent a letter to Congress and the Justice Department demanding requirements for the nine-member bench to disclose more information relating to their spouses' work due to Jane Roberts's paid work recruiting lawyers at top firms.
The proposed code would be more strict than the existing code for lower court judges, which prohibits participation in political activities, because it would also block justices from appearing before groups with certain partisan beliefs or agendas, such as the conservative Federalist Society or the liberal American Constitution Society.
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"This is putting the fox in charge of the hen house," Carrie Severino, a former law clerk to Clarence Thomas and president of the conservative judicial watchdog JCN, told the Washington Examiner. She denounced POGO as one of many "left-wing dark money groups" attempting to enforce stricter ethics on the justices.
Severino added that the goal of groups such as POGO is to "force ethically unnecessary recusals of the justices because they don't like the current composition of the Supreme Court," which has a 6-3 Republican-appointed majority.