Legal ethics experts had previously said while Ginni Thomas is an outspoken conservative activist, her husband is able to act as an independent judge of matters that come before the court.

Transcript

A MARTINEZ, HOST:

Supreme Court Justice Clarence Thomas and his wife, Ginni Thomas, find themselves increasingly in the eye of an ethics storm. This centers on her repeated texts urging then-White House Chief of Staff Mark Meadows to take steps to overturn the results of the 2020 election. Those texts have raised concerns about what Justice Thomas knew about his wife's activities and when he knew it. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The modern-day code of judicial conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Mrs. Thomas is an outspoken conservative activist, her husband is able to act as an independent judge on matters that come before the court, even those matters that may touch on subjects of interest to Mrs. Thomas. But in the aftermath of the 2020 election, while Ginni Thomas was actively strategizing with the White House chief of staff on overturning the election results, Justice Thomas was repeatedly participating in cases that came to the court, either directly or indirectly, involving those election results. One of these was the court's decision in January requiring that Donald Trump's White House records be turned over to the House committee investigating the January 6 riot at the Capitol. Only one justice disagreed, Clarence Thomas. Mrs. Thomas' newly released texts and her husband's failure to recuse himself in the congressional subpoena case have pulled the couple into an ethics vortex. Richard Painter was the ethics lawyer for the George W. Bush White House.

RICHARD PAINTER: The subpoena of documents with his wife's own texts are among the pile of documents responsive to the subpoena. And that's a slam dunk. He had to recuse. He didn't. I'd want to know why.

TOTENBERG: James Alfini is the dean emeritus of South Texas College of Law and author of a book on judicial ethics.

JAMES ALFINI: I don't think he wanted his wife to be embarrassed by any revelations that might come as a result of the granting of the subpoena. I don't think he wanted himself to be embarrassed by any of those revelations.

TOTENBERG: NYU law professor Stephen Gillers is the author of a leading text dealing with judicial ethics.

STEPHEN GILLERS: It was his obligation as a justice under the recusal statute to ensure that nothing she has been doing warranted his recusal. And he could not, in other words, maintain a kind of false ignorance, closing his ears.

TOTENBERG: All of these experts on judicial ethics previously had expressed views supporting the Thomases' separate lives. But this time, all say Mrs. Thomas crossed the line, and so very likely did her husband in not recusing himself from cases that came to the court involving election challenges brought by Trump and his allies.

CHARLES GEYH: I think this is different.

TOTENBERG: Charles Geyh is a leading ethics professor at the University of Indiana, Bloomington.

GEYH: I don't know how someone could be impartial when their spouse is part of the record that may be before the judge.

TOTENBERG: Geyh notes that the federal recusal statute requires a judge to step aside when he has knowledge of disputed facts in a case. And Ginni Thomas' texts were, in the end, part of the larger factual record that was produced pursuant to the congressional subpoena. Painter is more blunt.

PAINTER: He should make it clear that he's going to recuse from all of these January 6 cases at this point.

TOTENBERG: There is, however, no way to force Justice Thomas to do that. The court has made clear it is different from other courts because it's a court of nine. Nobody can sub in for a recused justice. And a tie vote would mean that a case is not resolved. Moreover, under longstanding practice, each justice decide for him or herself when to recuse. So what's the recourse if a judge goes rogue? Impeachment is the only recourse. And that would be, as professor Alfini puts it, folly.

Only one justice has ever been impeached, and he was subsequently acquitted. Chief Justice John Roberts could have a private conversation with Thomas. Roberts and other members of the court have been desperately trying to persuade the public that the court is not a partisan institution. But public opinion surveys indicate that public approval of the court has dropped precipitously from 68% in 2019 to 40% last fall. Legal ethics experts seem to agree that now is the time for the court to write its own ethics rules. And one of the rules might be to create a mechanism for a justice who is unsure about recusal to submit the question to the other members of the court. It may not be an ideal solution, but neither is the current status quo.

Nina Totenberg, NPR News, Washington.

[POST-BROADCAST CORRECTION: The audio refers incorrectly to the University of Indiana, as did a previous version of the web story. It's actually Indiana University.]

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Correction

The audio refers incorrectly to the University of Indiana, as did a previous version of the web story. It's actually Indiana University.