Confronting the Kraken

Restoring the Supreme Court’s Independence and Impartiality

This is another entry in Civic Way’s journal on current events, and their relevance to our democracy, governance and future. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.

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The latest political controversy? The fiery texts between Ginni Thomas and other pro-Trump zealots. In one text, she called the 2020 presidential election the “greatest Heist of our History.” In another, she urged Trump’s last chief of staff, “Release the Kraken and save us from the left...”

She is, in the words of George Will, “politically, mad as a hatter.” She also is married to a Supreme Court justice—Clarence Thomas—whose political philosophy is fully compatible and formed.

Critics are using the Ginny Thomas texts, her “Stop the Steal” rally attendance and her small lobbing firm to sound alarm bells about Justice Thomas’ ethics. Their rallying cry? Since Ginny Thomas supported efforts to overturn the election, Justice Thomas should recuse himself from any related matters that come before the Court.

Several Congressional Democrats aired their concerns about Justice Thomas’ potential spousal conflict of interest. They formally asked that he recuse himself from any cases involving 2020 election nullification activities and provide a “written explanation for his failure to recuse himself” in prior cases.

Is there a conflict of interest? To what extent was Ginny Thomas involved in the events leading up to the January 6th assault? Leader or cheerleader? Planner or bystander? We don’t really know, and we are unlikely to ever know. In the meantime, what should be done?

Should Justice Thomas recuse himself? It wouldn’t be the first time. Supreme Court justices often opt for recusal when their impartiality might “reasonably be questioned.” For example, there were 180 recusals during the 2016 term and 145 recusals during the 2019 term. Thomas has recused himself from over 50 cases, including United States v. Virginia when his son attended Virginia Military Institute (VMI).

Another Thomas recusal won’t likely materially affect public opinion. Nor will it prevent the other justices from making a decision in his absence. It won’t make the Democrats look any less hypocritical. And it certainly won’t stop opportunists like Ginni Thomas or Hunter Biden from exploiting their connections.

Still, like in the VMI case, Justice Thomas should consider recusal. To avoid a perceived conflict of interest. To demonstrate his objectivity. To put the Court first. It is solely his decision to make.

Whatever Thomas does, there is a far weightier issue—the Supreme Court’s independence.

Public trust in the Court is low. Not because of Clarence or Ginni Thomas, but because of more consequential factors. One is the embarrassing confirmation process. In the short-term, increasingly nasty confirmation hearings vilify incoming justices. In the long run, hijacking hearings for political purposes raises serious doubts about the Court’s impartiality.

Until recently, Senators focused on qualifications and temperament and gave most nominees overwhelming bipartisan approval. Only 12 nominees have been voted down in 235 years. Scalia, a conservative icon, was confirmed by a vote of 98-0 and Ginsburg, a liberal legend, received 96 votes. The most recent nominee—Ketanji Brown Jackson—could only muster three GOP votes despite her impeccable credentials.

There are other reasons for the Court’s flagging legitimacy. One is their perceived isolation. Supreme Court Justices enjoy lifetime tenure. Like Presidents, they may be removed from office by Congress. However, no justices have been removed, only one has been impeached and only one has resigned under the threat of impeachment.

One more factor. Unlike other federal courts, the Supreme Court lacks a formal code of ethics and enforcement mechanism. Unlike Congress, the Supreme Court cannot vote to censure or expel a member. And the Chief Justice lacks the power to enforce standards or ensure accountability.

What happens next? One proposed ethics bill would require the Supreme Court to develop a code of conduct within 180 days of enactment. While there is considerable Democratic support for the bill, sufficient GOP support to overcome the Senate’s 60-vote threshold has not yet materialized. More political pressure on Justice Thomas (and his wife) won’t improve the odds.

Some liberals may see Clarence Thomas as the “Kraken” in this tale, but he is not. He makes decisions in accord with his ideological leanings, but that feature distinguishes him from very few other justices.

Regardless of their background, judges have ideological leanings and shape most of their opinions accordingly. They may wrap their political philosophy in legal doctrine, but they see most cases through ideological lens.

Instead of hurling accusations at individual justices, perhaps we should combat the real Kraken—the rotting of a vital civic institution.

Revitalize the Supreme Court with long overdue reforms, including a dignified confirmation process, term limits, broader legal training, flexible licensing, accessible data, a formal Code of Conduct (with rigorous disclosure requirements) and ample enforcement powers for the Chief Justice.

Instead of scoring political points, let’s fix the problem.