Recusal and the Legal System

        Chief Justice Marshall had laid out the foundations of the way in which we now treat sovereign Indian territories in the United States in an 1832 case, Worcester v. Georgia.  Shortly after, it was reported that President Andrew Jackson, in his known scorn for the Native American tribes, said “John Marshall has made his decision; now let him enforce it!”  Jackson was confident the sovereignty of the tribes would never be solidified because the courts only had the ability to define and rule of laws, not enforce them.  This presidential outburst encapsulates an important and often overlooked point: courts only have as much power as the citizens give them.

        The court system of the United States is often seen as the gold standard of the world.  Our lawyers, judges, and arbiters are often brought into other nations as they build their legal systems.  We have built a system that handles more than 100 million cases per year, and that’s just the state courts.  For the vast majority, these cases are handled carefully, on the merits, with a judge presiding over the matter.  This is the cornerstone of the system: a fair judiciary that can rule in an unbiased manner, unburdened by interests of one side or the other.  Our confidence in the system is the only thing keeping it alive, and that confidence is continually reinforced by the noble tradition of recusal.  This is the practice of judges voluntarily removing themselves from a case because of a conflict of interest, making them possibly unable to rule fairly.  Unfortunately, Justice Clarence Thomas has thrown this practice to the wind in a stunning display of shortsighted stubbornness.

        A few weeks ago, it was reported that Ginni Thomas, the wife of Justice Thomas, has been involved in far-right demonstrations and organizations, going so far as to attend the rally in D.C. before the attempted insurrection on January 6th.  This is just the latest bit of information to come out about Mrs. Thomas’ activities as a dedicated Trump supporter.  But what she does is not important, to this piece or the country.  What is important is her husband, as a member of the highest court in the land, has decided to rule on several cases involving the former President whom his wife has supported.  And that President has tried to overthrow the government of the United States.

        The federal law on judicial recusal, 28 U.S.C. §455, been in effect since 1911 and has come to include any “justice, judge, or magistrate judge of the United States”.  While addressing the classic issues that may result in bias, the law also states a Justice shall disqualify themselves when they have a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”.  It is also telling that the law specifically mentions the bias or circumstances for recusal could also come from the actions of their spouse.  Lastly, this law, along with the ethical rules in every state, say it is a judge’s duty to recuse themselves to avoid even the appearance of bias.  This federal law mandates that a Justice of the Supreme Court shall recuse himself “in any proceeding in which his impartiality might reasonably be questioned.”

        We don’t know the extent to which Mr. and Mrs. Thomas discuss these matters involving Donald Trump’s actions over the past six years.  However, given the actual law, all we need is speculation!  The law itself was written by our legislator embracing the very nature of the court system and how important our confidence is in that system.  A judge must recuse themselves if there is even the appearance of bias because it isn’t about the judge, it's about the country and the system as a whole.  Yet Justice Thomas has shown through his actions how little he regards these rules.

        In a 2009 SCOTUS decision, over which Justice Thomas presided, the court held “the objective inquiry is not whether the judge is actually biased, but whether the average judge in their position is likely to be neutral or there is an unconstitutional ‘potential for bias,’”.  Yet later, during the 2020 election, Justice Thomas was the lone dissent in Republican Party of Pennsylvania v. Degraffenreid, a case brought before the court in order to stop counting ballots in the state, despite a raging pandemic endangering the lives of American citizens.  There, Justice Thomas decided to pen a dissent despite the actual case being moot, meaning even if the court decide to rule one way or another, it wouldn’t make a difference.  The state Republican Party brought the complaint before the court despite the objected ballots coming nowhere close to the amount President Biden won the state by.  Justice Thomas saw this as an opportunity to “address just what authority non-legislative officials have to set election rules”.  The “nonlegislative” officials he is referring to is the Supreme Court of Pennsylvania, a body which decided to extend the acceptance date of ballots submitted in a presidential election, during a pandemic, while the post office was suffering under a massive increase in mail-in-ballots and willful, documented mismanagement.  As we now know, his wife was pushing then-chief-of-staff Mark Meadows to overturn the election and “stop the steal”, yet he took part in the decision and didn’t recuse himself.  In short, Justice Thomas knew better but is choosing to pursue his own selfish interests over the country’s. But what action should be taken?  This is not a blog post complaining about a Justice of the Supreme Court, this is a call to action.

        Article III of the Constitution lays out the judicial branch of the government.  Section I states “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

        This provision both implies the importance of judicial independence through securing their compensation, but also links their tenure to impeachment.  By not setting term limits the wording “good Behaviour”, spelling and capitalization aside, has been interpreted to mean both their lifelong appointment and the only remedy for removal being impeachment.  The process works the same for Presidents and Justices, a majority in the House to bring charges and two thirds in the Senate to convict and remove them from office.  Only one Justice has ever been impeached, Samuel Chase, nominated by Washington and ruled in favor of judicial review as a federalist.  President Jefferson was appalled by the idea of an overarching Judiciary populated by the hated Federalist party and pushed for his impeachment and removal.  Justice Chase was acquitted, and judicial review became the accepted role of the courts, while also setting the precedent that judges could be removed through impeachment.  I believe now, Justice Thomas has met the threshold for impeachment based on his dangerous undermining of judicial impartiality and favoring an armed insurrection against the United States.

        I would be the first to acknowledge our justice system has flaws. It is slow, sometimes delivering unfair rulings, while benefiting those who can afford a competent lawyer.  But the ideals are there, and we deliver justice for the vast majority.  We are trying, damnit.  But Justice Thomas is not trying, nor is he trying to fake his effort.  Famous for his lack of questions during oral arguments, his actions now scream his lack of commitment to a fair and unbiased judiciary.  It is time for Justice Thomas to retire from the Supreme Court of the United States. If he is unwilling to do so, I believe he should be removed from the bench.

#FitzFile