requires federal judges and justices to recuse from cases in which their impartiality might reasonably be questioned, including cases in which their spouses have interests. By way of example, if a justice’s wife is involved in efforts to overturn a presidential election, the justice should recuse from cases involving the presidential election and those efforts.
Yet when the House Jan. 6 committee subpoenaed documents that included communications between White House staff members and Ginny Thomas about overturning the 2020 election, her husband refused to recuse himself when the Trump administration’s appeal to stay the subpoena reached the high court. This was not only morally wrong but also a clear violation of the recusal statute.
Indeed, federal district and appeals judges are already subject to outside oversight, which includes investigations and imposition of discipline by the Judicial Conference of the United States. But the justices of the Supreme Court alone enforce the ethics rules for themselves. And their approach is to allow each justice alone to decide how, or whether, to comply with the law. Colleagues cover for colleagues.
The solution is the same as in other instances of professional misbehavior in close-knit groups of colleagues. We need meaningful supervision, with investigations of alleged wrongdoing and sanctions for those who violate rules. First, the Supreme Court needs a full-time ethics lawyer appointed by the chief justice with the consent of the eight other justices. The ethics lawyer would advise the justices, preferably in writing, about how to comply with the ethics rules in specific instances.
The justices interpret the Constitution and laws of the U.S. in decisions binding on lower courts and that affect all of our lives. They have lifetime tenure, but we have seen that tenure combined with colleagues covering for colleagues doesn’t work. Nobody is above the law. The justices also must obey the law. The court can’t be allowed to become an Animal House of ethics, and if the justices think there’s nobody to supervise them, Congress will need to show them that they are badly mistaken.
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