In CNN's video Toobin: Why Ginni Thomas' texts around 1/6 are problematic with the description

CNN chief legal analyst Jeffrey Toobin explains why Ginni Thomas' involvement with the events of January 6 complicates matters for her husband, Supreme Court Justice Clarence Thomas.

after about 02:00 Toobin says that the US Supreme court "have exempted themselves from all the ethical rules that all the other federal judges are abided by."

Have they done this simply by precedent alone, i.e. simply not exempting themselves for so long that it has become a de facto norm, or did the court actively state or rule that they don't have to, or is Toobin incorrect somehow?

My transcription:

Well... the thing that is so extraordinary about this is that... Ginni and Clarence Thomas have talked about that they are "a team". Now they also say that they do not interfere with each others' work.

But the traditions in courts has been that if a judge's spouse is at all involved in a matter that comes before the court, the judge recuses (themself). Now what's unusual about the United States Supreme Court is that they have exempted themselves from all the ethical rules that all the other federal judges are abided by.

So the Supreme Court operates entirely on on honor system. There is no formal rule for when judges should recuse themselves. But by any reasonable standard Clarence Thomas should not be sitting in all these cases.


2 Answers 2


It's perhaps referring to the Code of Conduct for Federal Judges, which nominally doesn't include SCOTUS. As a 2016 article relates:

The code is published and updated by the Judicial Conference of the United States, the national policy-making office of the federal court system. The Chief Justice of the United States, John G. Roberts, Jr., presides over the conference. Its members include the chief judges of every federal circuit court, and other federal judges.

The conference worked with the American Bar Association on the code and it adopted the current Code of Conduct in 1973 when it was proposed by Chief Justice Warren Burger. The code has been revised eight times since 1973.

The full federal code applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” It doesn’t apply to the Justices of the Supreme Court. (States have their own codes based on ABA guidelines.)

[...] Supreme Court Justices aren’t required to observe the code. According to the Constitution, they serve as long as they exhibit “good behavior,” or face possible impeachment and removal for “treason, bribery, or other high crimes and misdemeanors."

Also, various Supreme justices have commented that Congress could not subject them to such a code. For instance Roberts said that because the Constitution establishes the Supreme Court, but the rest of the courts are established by regular legislation, that applies to ethics codes too:

In 2011, Chief Justice Roberts made it clear in his end-of-year report that he believed Congress didn’t have the constitutional power to impose conduct rules on the Supreme Court.

“The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts,” Roberts said. “Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”

Other Justices have talked about conduct codes in congressional testimony. Justices Antonin Scalia and Stephen Breyer made a rare Senate Judiciary Committee appearance in 2011, where the code of conduct was raised as an issue.

Breyer said when there was an ethics question he couldn’t resolve about his participation in a case, he “called an ethics professor.” Breyer also pointed out that unlike the lower federal courts, there wasn’t another judge to bring onto the Supreme Court to take his place and he had a “duty to sit.”

There is an impeachment process for removing Supreme justices though... where ironically Congress could mostly make up the rules as it goes, from case to case.


The actions and decisions made by the SCOTUS are not subject to judicial review. The only way a Supreme Court justice can be (legally) removed from their job is through impeachment (by Congress).

SCOTUS being the last court to review any judicial decisions is simply the way the US government is structured.

SCOTUS could subject itself to ethical reviews by 3rd parties, but that would be a voluntary reduction to their power.

Independence of SCOTUS from the other 2 branches of the government ( (1) the executive and its law enforcement agencies and (2) Congress ) is part of the checks-and-balances structure created by the US Constitution.

No branch can expand its power over the other branch other than in very limited ways which are explicitly specified in the Constitution.

Making professional conduct of SCOTUS judges subject to any kind of review is not a power granted either to the Congress nor to the Executive branch.

So, again, unless SCOTUS voluntarily submits its actions to a review by a 3rd party, it remains free of any review (including review of whether its actions were ethical). SCOTUS does not need to carve out any special exemptions from a review process for itself. If SCOTUS does nothing, then it remains free of any 3rd party review by the virtue of that.

It can be argued that, because laws still apply to SCOTUS' members, the corruption statutes give the Executive branch power to investigate professional actions of SCOTUS members, but it does not give the Executive branch any special powers to change SCOTUS' conduct beyond what the Executive can already do to other citizens.


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