Chief Justice Roberts has held himself out as the model of an independent, nonpartisan jurist during his 17-year tenure. How will he handle the Clarence Thomas problem? by DavidGSavage
Chief Justice John G. Roberts Jr. has always said he believes ethical standards at the Supreme Court should depend not on clear and binding rules, but on the “good judgment” of the nine justices.
He said that while the judicial code provides “guidance,” the justices are not bound by it. Roberts so far has rebuffed calls for the court to create its own code of ethics and questioned whether Congress has the constitutional authority to do so. On the right, the recent uproar over Thomas and his wife is seen as politically motivated, not ethics. It’s a view likely shared by some of the court’s conservatives.
Senate Judiciary Committee Chairman Sen. Dick Durbin said the ethics issue should not be partisan. He said it was troubling that judges, federal employees and members of Congress are bound by strict rules, and they can be fined or punished for violations, but the Supreme Court has exempted itself. That was the only reference to the recent revelations by ProPublica that Thomas and his wife had for many years taken free and undisclosed vacations aboard a private jet and yacht with Harlan Crow, a Texas real estate billionaire and Republican donor.
When the Supreme Court agreed in 2011 to rule on the law’s constitutionality, Common Cause said Thomas should recuse himself, citing his wife’s public role in fighting against the healthcare legislation. More recently, Thomas has faced calls to recuse himself because of his wife’s role in urging the Trump White House to fight the 2020 election won by Joe Biden.
Trump lost in the lower courts, and the Supreme Court turned down his appeal with only one dissent. It came from Clarence Thomas.“Individual Justices, rather than the court, decide recusal issues,” they said in the statement sent to Sen. Durbin. “If the full court or any subset of the court were to review the recusal decisions of individual justices, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.
Contrary to these stories, the broader problem facing the court is not corruption, but the justices appearing as partisans and ideologues.
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