In December 2000, while Justice Clarence Thomas was preparing to hear arguments in Bush v. Gore, his wife Ginni was collecting resumes for a possible Bush administration. Given the perceived conflict – Ginni and her colleagues stood to gain should Bush prevail before the justices, Thomas was asked to recuse.
Fast-forward a decade and a group of 74 members of Congress asked Justice Thomas to recuse himself in another consequential case, NFIB v. Sebelius, better known as the Obamacare case. At the time the law was signed, Ginni Thomas was head of Liberty Central, a group that often called the law a “disaster” and urged Congress to repeal it.
Justice Thomas recused himself in neither case and came out on the winning side of a 5-4 decision in the former case and the losing side in the latter. In neither instance did anyone in the federal judiciary – not the chief justice of the United States, not the Judicial Conference – have the authority to push Thomas to respond to these requests, nor did any judicial inspector general or ethics committee weigh in. The decision to hear both cases was Justice Thomas’ alone.
And, remember, there is no inspector general of the federal judiciary or ethics committee with jurisdiction over case staffing decisions at the Supreme Court.
The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.
Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.