Should the Supremes be More Than Equal?
Justice Clarence Thomas and Ginni Thomas.
Ginni Thomas’s post-election emails to Mark Meadows, chief of staff to then-President Donald Trump, are reaping the whirlwind. For she has indeed sowed the wind, as Bob Woodward and Bob Costa revealed in The Washington Post last week.
Though many knew the wife of Supreme Court Justice Clarence Thomas is a stalwart and powerful conservative activist, seeing her passionately advocate for overturning the 2020 presidential election and seriously undermining U.S. democracy was still stunning. The assertion that Jesus is on her side only increased the gale-force winds.
Her actions, as well as the fact that her husband, whom she refers to as her “best friend,” was the sole justice voting against release of a key cache of Trump’s papers, has redoubled demands that Thomas must recuse himself from future votes involving the Jan. 6 congressional committee. Suits tied to that panel’s investigations into the attack on Congress are even now making their way through the lower courts.
But the growing public outcry for Thomas to recuse himself on this matter has run smack into the fact that U.S. Supreme Court justices are virtually outside all legal system rules. No judicial regulations can touch them. No legal ethics code can impinge on their actions. Justices can officially act with impunity -- without even having to explain why they do or do not recuse themselves from a specific case. In this way, a seat on the high bench could be viewed as the dictionary definition of “above the law.”
An astute constitutional scholar explored this issue in Politico, when I was Opinion Editor there roughly a decade ago, and offered one possible solution: Justices should sit on the U.S. Supreme Court for roughly 15 years. After all, that is more than twice as long as any of the first 10 justices served, Herman Schwartz explained. It is also happens to be the length of the average term for all the Supremes through 1970. No other democracy, Schwartz noted, grants lifetime tenure.
The separation of powers among the congressional, executive and judicial branches of government is one big way the Framers sought to ensure U.S. democracy would prevail. Ginni Thomas’s actions seem about to severely test this.