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Jonathan Newton

Supreme Court Justice Clarence Thomas is facing calls from Democrats and court transparency advocates to recuse himself from a case examining whether former president <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> can appear on 2024 primary election ballots nationwide.

On Thursday the justices will hear oral arguments about a Colorado Supreme Court decision that found Trump engaged in insurrection before and during the <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, attack on the Capitol and is, as a result, disqualified from running under the 14th Amendment. The provision was initially adopted to keep Confederates from returning to power.

Democratic lawmakers have raised concerns about Thomas’s ability to remain impartial in this and several other Jan. 6-related cases given the involvement of his wife, Virginia “Ginni” Thomas, in the movement to overturn the 2020 election results. The ballot disqualification case, which is likely to be decided quickly, is a test of the court’s recently released <a href="https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup" target=_blank>code of conduct</a> and recusal guidelines.

Why might a justice recuse from a case?

The Supreme Court’s newly adopted ethics code <a href="https://www.washingtonpost.com/politics/2023/11/13/supreme-court-ethics-code/?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup&itid=lk_inline_manual_109&itid=lk_inline_manual_31" target=_blank>asks the justices</a> to disqualify themselves if their “impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

The code suggests recusal if a justice or their spouse has “an interest that could be substantially affected by the outcome of the proceeding” or is “likely to be a material witness in the proceeding.” Justice Ketanji Brown Jackson, who previously served on Harvard University’s Board of Overseers, notably recused herself from one of two cases examining the constitutionality of race-conscious admissions practices in 2022 because Harvard was the defendant.

However, the decision to recuse is up to the individual justice — a point of contention among critics including Sen. Sheldon Whitehouse (D-R.I.), who is sponsoring legislation to impose an enforceable ethics code on the justices.

When they do sit out a case, justices do not have to say why; Justice Neil M. Gorsuch gave no reason when he recused himself this year from an Oklahoma death penalty case, although it was probably related to his time as a judge on an appeals court that covers Oklahoma.

Recusals are rare at the high court, in part because unlike in lower courts, no other judge can fill in for an absent justice. When the Supreme Court is shorthanded, it can result in a 4-4 tie. Justices recused themselves in about 3 percent of appeals between 2018 and 2022, with Justices Samuel A. Alito and Elena Kagan doing so most often, according to a <a href="https://news.bloomberglaw.com/us-law-week/alito-kagan-top-justices-in-supreme-court-recusal-black-box-1" target=_blank>2023 Bloomberg Law analysis</a>.

Thomas didn’t sit out any case between 2018 and 2021, but recused himself from 3 percent of cases in 2022, according to the analysis. When the high court <a href="https://www.supremecourt.gov/orders/courtorders/010524zr2_886b.pdf" target=_blank>accepted the Colorado case</a>, there was no indication that Thomas would recuse from it.

How was Ginni Thomas involved in Jan. 6?

Ginni Thomas pressed the <a href="https://www.washingtonpost.com/politics/2022/03/24/virginia-thomas-mark-meadows-texts/?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup&itid=lk_inline_manual_103&itid=lk_inline_manual_11" target=_blank>Trump White House</a> and <a href="https://www.washingtonpost.com/investigations/2022/09/01/ginni-thomas-wisconsin-bernier-tauchen/?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup&itid=lk_inline_manual_103&itid=lk_inline_manual_11" target=_blank>lawmakers</a> to overturn Joe Biden’s 2020 victory, exchanging more than two dozen text messages with White House Chief of Staff Mark Meadows in the weeks after the vote.

She <a href="https://www.washingtonpost.com/national-security/2022/06/15/ginni-thomas-john-eastman-emails/?itid=lk_inline_manual_11" target=_blank>corresponded</a> with lawyer John Eastman, a former Thomas clerk who had advocated a fringe legal theory that Vice President <a href="https://www.washingtonpost.com/elections/candidates/mike-pence-2024/?itid=lk_inline_manual_11" target=_blank>Mike Pence</a> could block the certification of Biden’s electoral college win.

Thomas also <a href="https://www.washingtonpost.com/politics/2022/03/14/ginni-thomas-jan-6-rally-capitol-attack/?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup&itid=lk_inline_manual_103&itid=lk_inline_manual_11" target=_blank>attended</a> the Jan. 6 “Stop the Steal” rally before the Capitol attack and told the House committee investigating the attack in 2022 that she <a href="https://www.washingtonpost.com/politics/2022/09/29/ginni-thomas-jan6-election/?utm_campaign=wp_power_up&utm_medium=email&utm_source=newsletter&wpisrc=nl_powerup&itid=lk_inline_manual_103&itid=lk_inline_manual_11" target=_blank>still believed</a> the 2020 election was stolen.

Arguments for Justice Thomas to hear the case

Mark Paoletta, the D.C. lawyer and former White House aide who helped with Thomas’s confirmation, said Ginni Thomas is allowed to express her opinion on matters that come before the court, and “those opinions do not constitute an ‘interest’ that requires recusal.”

“As there is no basis whatsoever for Justice Thomas to recuse from Trump v. Anderson, Justice Thomas has a duty to sit on this case,” Paoletta said in an email.

Retired federal judge Jeremy Fogel said Thomas doesn’t necessarily need to recuse if the Supreme Court plans to approach Thursday’s case through the lens of whether Trump’s ballot status should be up to Congress — instead of debating whether the Jan. 6 attack was an insurrection.

That’s because the justices will be asking technical, procedural questions about the very first court hearing on the matter in Denver. Fogel said the justices could ask questions such as, “What is the power of the states [with] respect [to] this particular constitutional amendment?” They could also ask “Was the hearing conducted fairly?” and “Was it an adequate process of fact-finding?”

For that reason, “the specific issues that [they’d be] deciding in the insurrection case [would] not implicate the interests of [Thomas] or anyone to whom he’s close,” said Fogel, who is now the executive director of the Berkeley Judicial Institute.

Thomas could also argue that the ballot disqualification case, the outcome of which could change the landscape of the 2024 presidential election, requires input from all nine justices, said Gabe Roth, executive director of the transparency group Fix the Court.

Last month, seven Democratic lawmakers led by Rep. Hank Johnson (Ga.), the top Democrat on the House Judiciary Committee’s courts subcommittee, sent a letter to Thomas urging him to recuse himself from the ballot disqualification case, citing dwindling public confidence in the Supreme Court.

“Fewer than half of all Americans trust the Supreme Court, and that number will fall even lower if you rule in this case,” the eight Democrats warned. “To protect the Court’s integrity and the legitimacy of its decision in this monumental case, you must recuse yourself.”

Fogel said Thomas should also weigh how his decision to hear the case will affect the public’s perception of the court and its eventual ruling.

Ginni Thomas’s involvement “raises the question of whether he can fairly assess the gravity of the conduct that President Trump is accused of,” Fogel said. “Even if it’s not the precise issue that the court is deciding, it [may create] the appearance that he is going to try to find a way to rule in President Trump’s favor because of his wife’s affiliations and advocacy.”

When has Thomas recused from a case before?

Thomas has so far sat out one Jan. 6-related case: An appeal by Eastman related to his efforts to help Trump block certification of the 2020 election. Thomas <a href="https://www.supremecourt.gov/orders/courtorders/100223zor_5368.pdf" target=_blank>didn’t list</a> a reason for his recusal, but it may be because Eastman is the justice’s former law clerk and friend.

Fogel called Thomas’s decision to recuse himself from the Eastman case a “no brainer.”

But the court did not indicate when it took the Colorado ballot case that Thomas, or any justice, would sit out — which means it is almost certain that all will participate.

The result, according to Fogel: “People who are already wary or critical are going to be more wary and more critical,” he said.

Roth said he hopes that Thomas will explain his reasoning for hearing the case.

“I think that he has that responsibility to say, ‘I’m going to participate in all these cases. There’s all these questions swirling around. This is why I think that it’s okay for me to do so,’” Roth said.

“Anything that raises the level of transparency at the court — based on how they take cases or approach cases or approach their own ethical responsibilities — would be a positive.”

Rutgers University, BA in Biological Sciences

American University, MA in Journalism and Public Affairs

Tobi Raji covers the federal judiciary and the Supreme Court as a part of The Washington Post's Opportunity Program. She was previously a researcher for The Early 202, a pre-dawn newsletter about the nation’s major power centers, including the White House, Congress and the Supreme Court. She joined The Post in 2021.

Tobi Raji

Why some want Justice Clarence Thomas to recuse from Trump ballot case

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