U.S. Supreme Court’s increasingly partisan divide raises questions about ethics

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• Judy Woodruff:

  The congressional committee investigating January 6 has been poring through thousands of communications around the attack, but it is messages between President Trump's chief of staff and Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, that have raised questions beyond the attack itself.

  John Yang has more.

• John Yang:

  Judy, the 29 text messages and Ginni Thomas' outspoken support for overturning the 2020 election have led some critics to call for Justice Thomas to recuse himself from cases about the investigation and the election.

  It's also sparked a larger conversation about what Supreme Court justices should and should not be allowed to do.

  To discuss all of this, Gabe Roth. He's the executive director of Fix the Court, a group advocating for Supreme Court reforms, and John Malcolm, the director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation, and we should note that Ginni Thomas worked at Heritage, but that — but left before John Malcolm joined the foundation.

  Gentlemen, thank you. Thanks to you both, and welcome to the "NewsHour."

  So, in January, before these text messages were publicly known, the Supreme Court blocked Donald Trump's bid to keep the January 6 investigative commission from getting documents from the National Archives.

  If — and Justice Thomas was the only dissenter in that case.

  Gabe Roth, let me begin with you.

  If Justice Thomas had known about those phone text messages — and we don't know that he did — or I guess, even if he didn't know, should — do you think he should have recused himself? And should he recuse himself from future cases?

  Gabe Roth Executive Director, Fix the Court: Related to the 2020 election in the efforts to overturn it?

• John Yang:

  Yes.

• Gabe Roth:

  Absolutely, he should recuse from those future cases, and he should have recused from the case that went to the Supreme Court back in January.

  There's no question that the operative federal law on recusal is implicated here. It says that a justice shall recuse when his impartiality might reasonably be questioned. And a reasonable person might believe that Clarence and Ginni spoke about what her efforts were in terms of trying to overturn the election.

  The recusal law also says that justices should recuse when their spouse's interests are implicated. We don't know who was paying Ginni Thomas to try to overturn the election. We don't — the term interest is kind of broad.

  So, I think, for those couple of reasons, and the fact that this is a reasonable person standard, he should step aside. And I think stepping aside would stop impugning the integrity of the Supreme Court, which has happened given his participation and those texts.

• John Yang:

  John Malcolm, what do you think?

• John Malcolm, The Heritage Foundation:

  Yes, look, I completely disagree with that.

  I mean, Ginni Thomas is not a lawyer. She is not a litigant. She doesn't work for any organization that is a party to any lawsuit. There's no reason to believe that she is in any legal jeopardy whatsoever. While her messages may have been unwise or perhaps hyperbolic, there is no reason to question the impartiality of Justice Thomas or any other member of the court to rule on arcane legal issues, such as the application of the Elections Clause, to changes to voting laws, or the scope of executive privilege.

  This is really part of an ongoing effort to try to intimidate conservative judges and an ongoing and longtime effort to denigrate Justice Thomas and to delegitimize the court. She has no personal interest at all that could be affected by the outcome of any litigation related to the election or January 6.

  She may have wanted Donald Trump to win the election or for a legal challenge to succeed, but she's not involved in any of that.

• John Yang:

  There was a new poll out today for Morning Consult and Politico that shows that a little more than half of those questioned said that they believe Justice Thomas should not participate in election-related cases.

  John Malcolm, if he does decide not to recuse himself, to participate in these sorts of cases, do you think he should explain why, if for no other reason than the sort of the public integrity and legitimacy of the court?

• John Malcolm:

  I don't think that he — look, if he does recuse, it will be obvious why he recused. It usually is when a justice recuses themselves. It's because they have a family member who has a personal, usually financial, stake in the outcome of the case.

  Justices do not typically state why they don't recuse. It's because they obviously believe that their impartiality cannot be reasonably questioned. And Ginni Thomas has said on many occasions that Clarence Thomas is not involved in her political activity, and she doesn't get her constitutional rights from her husband, and, certainly, she does not dictate how he should decide legal questions or what legal theories he should employ in writing his opinions.

• John Yang:

  Gabe Roth, what's your reaction?

• Gabe Roth:

  There's no effort to intimidate conservative justices.

  There are basic ethics standards that all federal judges, all state court judges, all municipal judges, and even the Supreme Court should be following. And, in this case, Justice Thomas is not following those standards.

  I would argue Justice Kagan didn't follow those standards when she didn't recuse from the Obamacare cases about a decade ago. And I would argue that Justice Breyer and Justice Alito and Justice Roberts, who all own shares in publicly traded companies who sometimes forget to recuse from those cases, are also not following those ethics standards.

  So there's no campaign, there's no effort to try to intimidate anyone. It's just groups like mine, Fix the Court, a nonpartisan group, are trying to say there are basic ethics standards that every judge in the country should follow, and the Supreme Court, which has exempted itself from even having a basic ethics code, shouldn't be exempt, and that no justice is above the law and above basic ethics — ethical guardrails.

• John Yang:

  This is not the first time that Ginni Thomas' political activism has raised these questions. It also came up when the court was considering the Affordable Care Act.

  Earlier this week, Justice Amy Coney Barrett was asked about spouses' activities at the Reagan Library.

• Amy Coney Barrett, U.S. Supreme Court Associate Justice:

  : We're living in a time when we have a lot of couples where both are working. And so I think that the court and society has to adjust to expect that.

• Question:

  Do you think there should be court guidelines on what working spouses should and should not do?

• Amy Coney Barrett:

  I don't think most of the spouses would be very happy about those guidelines. Certainly, when I try to give my husband guidelines about what to do and not to do in the house, even, that doesn't go over very well.

  (LAUGHTER)

• John Yang:

  John Malcolm, should the court — should the code of conduct be more explicit at the Supreme Court? And should it explicitly cover spouses' activities?

• John Malcolm:

  It does.

  So, when a spouse has a personal interests that could be substantially affected by the outcome of a case, then the judge is supposed to recuse. I mean, if Ginni Thomas were a litigant, if she were a party or worked for an organization that was a party in any of these, if she sent messages saying that she was lobbying her husband or had her husband speak to litigants, then this would be a totally different story.

  But that is not the case.

• John Yang:

  Gabe Roth, on the question of — I know your group has proposed a code of ethics, and spouses' activity is under that. What do you say?

• Gabe Roth:

  Well, I think, look — look, Ginni Thomas, it's been part of a pattern and practice. I think a lot of folks are just tired of that activism and are concerned that it could be potentially bleeding into the conversations that she has with her husband.

  But I think, overall, the issue here is, if you are a member of the public, and the Supreme Court is going to have this outsized power, right — Congress basically can't do anything. Congress and the executive are always fighting. Power and nature abhors a vacuum. So the Supreme Court has become the most powerful, least accountable part of our government.

  We want basic guidelines that every justice follows, so we know, so we have expectations — and this is something that was introduced today in Congress by a bicameral group in the House and the Senate, saying, this is what a code of conduct should be, this is what recusal laws should be in the 21st century, and we shouldn't have this sort of, oh, we're judges, we're the judiciary, we're philosopher kings of our age, and you should just trust us that we're above the law and we're above suspicion.

  That's not the case. As a healthy modern democracy, you want judges and justices to follow modern and, frankly, very basic rules of the road when it comes to ethics and recusal.

• John Yang:

  Gabe Roth of Fix the Court and John Malcolm of the Heritage Foundation, thank you both very much.

• John Malcolm:

  Thank you for having me on.

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