An alternate, much longer, but likely much more salient title for this post is “What’s a democracy supposed to do when a sitting United States Supreme Court Justice is okay with democracy being threatened?”
That’s right kids, today we are going to talk a bit about judicial ethics and remind everyone that we currently do not have any mechanism for forcing any of the 9 members of the United States Supreme Court to take judicial ethics seriously. None at all.
Before we go down that depressing alleyway though, let’s highlight two stories that involve judges at levels where judicial ethics can actually be enforced and where there are real world consequences for judges who cross lines.
For an amuse bouche we turn to a situation that really is about as diametrically opposed to the main point of this post as possible. It is this story about a Florida state court judge, who after leaving the bench, has now been publicly reprimanded for wearing a military uniform in his campaign advertising for his judicial position. You can get to the case docket for these proceedings here. The judge’s wrongdoing involved being depicted in photos on billboards wearing a military uniform — the judge previously served for more than 20 years in the U.S. Navy Judge Advocate General’s Corps. Now, Florida is a notoriously regressive state when it comes to its herculean efforts to trample on the First Amendment rights of folks when it comes to advertising and speech so it really shouldn’t be much surprise that it treats judicial election speech this way as well. The Florida decision mostly relies upon the idea that Department of Defense regulations prohibit what the judge and that therefore the judge also violated the Code of Judicial Conduct. For today’s purposes though … even if many of us would agree that the actual case against that judge might well be bogus — at least the notion that there is a mechanism for holding judges responsible is a decent thing.
For our second course — more of an appetizer actually — we turn to Michigan where there are “battling” members of that state’s highest court that have recently been in the spotlight. You can obtain more contours for the story here or here. The summary though is that one of the Michigan Supreme Court justices hired a clerk with a criminal past – specifically a man who served 14 years in prison (from 1994-2008) for an armed robbery where he also shot a police officer. Another member of the Michigan Supreme Court made public statements decrying the hire and touting just how “intensely pro-law enforcement” he is. So far (of course) the only fallout has been that the clerk has now resigned. But the potential for actual ramifications — actually holding the justice who decided to declare his pro-law enforcement bias to having to recuse from cases involving law enforcement in the future — is actually available because of the application of Michigan’s Code of Judicial Conduct. As a result, I would expect those words “intensely pro-law enforcement” will be repeatedly invoked in civil and criminal cases in motions insisting that Justice Bernstein recuse himself.
With those out of the way, let’s offer a contrast by reminding everyone that what was long suspected now appears to be true. Justice Thomas’s wife was, in fact, texting with the twice-impeached former POTUS’s Chief of Staff Mark Meadows in the time period leading up the January 6, 2021 insurrection and appears to have been also communicating about that situation with her husband. Her texts – which she now says she regrets — involved her repeating the stuff of Q-Anon and her testimony to the January 6 committee involved confirming that she actually did travel to the Capitol on January 6 and that her reference to “her best friend” in her texts to Meadows did mean her husband, Justice Thomas. Thus, the clear implication would be that in real time, in between text communications, she was also talking with her husband include her confirming that she had been talking with her husband about the need to find a way to keep Trump President regardless of how democracy might actually be intended to work.
Now, the world has known about many of the text communications for almost a full year but the new development is the testimony she gave to the January 6 committee and what it confirms about how difficult it is to believe that her husband was not aware of her conduct as it was going on. To be clear, Ms. Thomas insists that Justice Thomas had no idea that his wife was texting Mark Meadows until the press ‘leaked” the contents of her texts. As the title of this post makes clear, I’m skeptical.
The importance, from a judicial ethics point of view is the fact that Justice Thomas steadfastly did not recuse from cases involving questions of whether to force the turnover to the January 6 committee of records that reflected these communications and involvement of his wife. This has led again to new rounds of people trying to demand answers and investigations.
What Justice Thomas actually knew and when though is not likely to be something that we will ever get to find out even if the truth is that he actively used his judicial power to try to prevent the public from knowing about just how involved his wife was in trying to be part of the efforts to overturn the election or seize control of government and the fact that he was discussing those issues with her and providing her with spousal support on the topics.
If there existed any mechanism for enforcing the federal code of judicial conduct against sitting U.S. Supreme Court Justices, then someone might be able to get to the bottom of the details in terms of timing and, if warranted, cause a Justice who is improperly hearing matters on which they should stand down to face some sort of ramification.
But there doesn’t. So, we can’t.