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In the 2022-03-27 ABC News video Ginni Thomas texts to Meadows is a 'textbook' case for recusal: Sen. Klobuchar | ABC News after 03:24 ABC's Jonathan Karl quotes two text messages from Ginni Thomas, wife of US Supreme Court Justice Clarence Thomas and ends without a specific question, leaving Senator Amy Klobuchar an opportunity to issue what seems to be a statement of position on the issue of the (at least apparent) lack of any current ethics guidelines1 for the justices of the US Supreme Court (my transcription with assistance from closed captions):

Karl: ...I mean, my goodness!

Klobuchar: Johnathan the facts are clear here. This is unbelievable. You have the wife of a sitting Supreme Court justice advocating for an insurrection - advocating for overturning a legal election to a sitting president's chief of staff. And she also knows this election - these cases are going to come before her husband.

This is a textbook case for removing him, recusing him from these decisions. And I don't think - all I hear is silence from the supreme court right now. And that better change in the coming week, because every other federal judge in the country except Supreme Court justices would have a guidance from ethics rules that says you've gotta recuse himself.

Thomas himself recused himself in 1995 from a case involving a school because his son was going to that school. Justice Breyer recused himself when his wife was on the board of an entity and that case came before the Supreme Court.

Karl: And if he doesn't? If he doesn't recuse himself?

Klobuchar: Justice Rob... I mean the entire integrity of the Court is on the line here, and they had better speak out on this because you can not have a justice hearing cases related to this election... and in fact the ethics rules that apply to all the other federal judges say that if it involves a family member - appearance of impartiality - they have to recuse themselves.

So not only should he recuse himself, but this supreme court badly needs ethics rules. Chris Murphy's leading a bill (that) I've long been on (and) supportive of that says basically "Get your act together, get ethics rules in place." And I would hope justice Roberts, who I respect, will stand up and get those ethics rules in place. They've gotta do it, they should do it themselves.

I see two related but separate elements in Klobuchar's position:

  1. (the focus of this question)Thomas must recuse or perhaps be recused2 in (at least 2020 presidential) election cases.
  2. The Supreme Court had better get its "act together, get ethics rules in place" or else Congress will make them do it (or do it for them?)3.

Question: Does US Supreme Court Chief Justice John Roberts have the power to recuse Justice Clarence Thomas from specific cases related the 2020 presidential election and its aftermath due to his wife Ginny Thomas's perceived involvement if Thomas doesn't recuse himself?

What piqued my interest is Klobuchar's response to Karl's question "And if he doesn't? If he doesn't recuse himself?":

"Justice Rob... I mean the entire integrity of the Court is on the line here, and they had better speak out on this"

Other bits of her statement:

"...all I hear is silence from the supreme court right now. And that better change in the coming week.."

"And I would hope justice Roberts, who I respect, will stand up and get those ethics rules in place."

While Klobuchar is primarily expecting or at least hoping for Roberts to take some action on implementing ethics rules quickly, that she began her response to "And if he doesn't" with "Justice Rob..." and then cut her self off and changed tack suggests to me at least that she may have been dangling the idea that Roberts could recuse Thomas.

That someone else besides Thomas could recuse Thomas is enhanced by her case in "This is a textbook case for removing him, recusing him from these decisions. "


1for issues of ethical rules (or lack thereof) for the US Supreme Court, see references cited in Did the US Supreme court really "exemp(t) themselves from all the ethical rules that all the other federal judges are abided by"? If so, how? and its answers.

2Klobuchar: "This is a textbook case for removing him, recusing him from these decisions."

3Klobuchar: "Chris Murphy's leading a bill (that) I've long been on (and) supportive of that says basically 'Get your act together, get ethics rules in place.' And I would hope justice Roberts, who I respect, will stand up and get those ethics rules in place."

4for issues of likelihood and its prediction, see references cited in How does Skopos Labs (cited by govtrack.us) predict the probability of legislation passing? What is their track record & is it the first of its kind?

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2 Answers 2

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No.

Recusal as such is an action a judge can only apply to themselves. There may be rules, or requests made by others, recommending or demanding their recusal. But the very meaning of the word "recuse" is for someone to remove themselves from making a decision because of real or perceived conflict of interest.

Further, while judges can be impeached, absolutely nobody has the authority to challenge the judicial independence of a sitting SCOTUS judge. The decision to recuse themselves, or not, can be made by every SCOTUS judge solely at their own discretion.

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  • Thanks and +1! Beyond Merriam-Webster's dictionary definition (i.e. semantics), is it safe to say that in the history of the US Federal Judiciary a judge has never been recused by someone or something else? It may be helpful to cite a legal dictionary or other sources about US law; Merriam-Webster provides a generic explanation how to use a term, but a dictionary entry may not have enough space to include historical exceptions.
    – uhoh
    Mar 31 at 1:12
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    @uhoh I think judges can be removed from cases. But independence of the Supreme Court justices can only be challenged with an impeachment. SCOTUS judges constitutionally enjoy public trust to make determinations about their courses of actions on their own. What that means is that a judge probably can sit home, watch cartoons, never read the case, and still rule on it if they wish. They would never do that. Because SCOTUS judges are extremely carefully vetted to be the kinds of people who merit the public trust.
    – wrod
    Mar 31 at 1:17
  • In your answer to a related question you argue that the Court could submit itself to ethics rules. That is what Klobuchar is talking about here: Justice Roberts (presumably with the support of other Justices), not another branch of government, pushing for ethics rules that would curb these conflicts of interest. These answers seem at odds.
    – divibisan
    Mar 31 at 4:00
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    @divibisan That answer stresses that such submission would be voluntary, so figuring out how to mesh the two answers seems pretty clear to me. The Supreme Court could choose to write down rules saying under exactly what kinds of circumstances a justice ought to recuse themselves. But if a justice decides not to follow those rules, who would have the authority to actually force them to? The only option would be impeachment.
    – Ben
    Mar 31 at 4:13
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    Yeah, it's like the "nuclear option" in the Senate to remove filibuster. It's an additional restriction on the Senate that the Senate has imposed on itself. And any restriction that the court could voluntarily impose on itself, that requires a unanimous agreement, would be revocable by any one judge. It's procedure. It's not precedent. Plus, they go through many, many layers of vetting. So if they can't be trusted to behave, then they probably have a really good reason for it. And if a LOT of people determine that they don't, then they can be impeached.
    – wrod
    Mar 31 at 4:40
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As the answer by wrod correctly says, there is no existing mechanism by which Chief Justice Roberts, or even all the other Justices together, can force Thomas not to participate in certain cases. The code of ethics which is mandatory for other Federal Judges does not legally apply to the Justices, although in the past some have chosen to use it as a guide to when to recuse themselves.

The other members of the Supreme Court can exert significant pressure on one of their number: the Court depends on Justices working together, and Justices have in the past gone well out of the way to avoid undue animosity among themselves. But they have no formal power to compel any Justice not to participate in a specific case, or to resign.

The news story and the earlier answer suggest two further questions:

  1. Can the court adopt a binding ethics code for itself, which individual Justices would be required to comply with?
  2. Could Congress legislate such a code, and make it mandatory?

Unfortunately, the only clear answer is "It has never been tried, and there is no specific Constitutional authority to do so, nor any specific prohibition on doing so."

Article III of the Constitution does give Congress the power to create "exceptions" to the jurisdiction of the Supreme Court. Known as "Jurisdiction-stripping" this power has been used several times, and the Court has respected it. But it has never been used conditionally. It has always simply denied the Court jurisdiction over some particular subject or type of case, usually rather narrowly drawn.

Comments have mentioned the judicial independence of the Justices. This is a long tradition, but it also is not specifically based on a Constitutional provision. But the Court might rule a law imposing a code of conduct, or granting the Chief Justice or the Court the power to impose one on itself, to be unconstitutional.

It is worth recalling that Marbury v. Madison, the first case in which the Court actually struck down an act of Congress as unconstitutional, happened when Congress tried to grant a power to the Court beyond what the Constitution had already granted. (There was also some tangled politics behind it, which is not relevant to this question.)

The Constitution specifically grants each house of Congress to make the rules for its own conduct, and with a 2/3rds vote, to expel a member. No such power is specifically granted to the Supreme Court.

Congress could impeach and remove Thomas, of course. Whether they would do so on this issue is not at all clear. Nor has any case directly bearing on the events of Jan 6th yet come to the Court, so it may be that Thomas would recuse in any such case.

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