Ethics of Supreme Court Justice Clarence Thomas, other justices questioned at hearing

Experts and lawmakers Wednesday questioned how strict ethics rules should be for Supreme Court justices, a topic that has gained importance recently with revelations that Ginni Thomas, the wife of Justice Clarence Thomas, supported efforts to challenge the 2020 presidential election results.

But the discussion at a House subcommittee hearing largely split along party lines. Republicans accused reform proponents of partisan and racial attacks against Justice Thomas. Democrats pointed to ethical lapses of justices appointed by both parties and the importance of the appearance of impartiality, in addition to impartiality as defined by law.

Several experts on the subject suggested a binding code of ethics for Supreme Court justices as a step toward ethics reform.

"This house is built on the rule of law," said Rep. Hank Johnson, D-Ga., who chairs the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet. "Its foundation is fairness, transparency and accountability. But the lack of enforceable ethical standards for judicial officers is a crack in that foundation."

A Senate Judiciary subcommittee will hold a similar hearing next week.

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The hearing came a month after reports revealed Ginni Thomas texted Trump's chief of staff Mark Meadows in early 2021 and urged him to challenge the 2020 election.

“Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History,” according to a text she sent Meadows in November 2020, according to The Washington Post.

Clarence Thomas last year sided with Donald Trump when the former president tried to keep insurrection-related communications secret. It's unknown whether Ginni Thomas' texts were in that batch of communication, or whether Justice Thomas knew about his wife’s efforts related to the election.

But the justice's decision, as well as the subsequent revelations about Ginni Thomas's actions, reignited the debate over ethics and the high court.

"This problem is much bigger than Clarence Thomas, but his is a case in point for why enacting enforceable ethics rules is long past due," Johnson said.

Gabe Roth, executive director of the nonpartisan nonprofit Fix the Court and one of four legal experts who testified Wednesday, pointed to existing recusal law, which says that a judge or justice must recuse when "his impartiality might reasonably be questioned."

"I'm a reasonable person, and I questioned Justice Thomas' impartiality," Roth said.

Many Republican lawmakers, plus Mark Paoletta, a partner at Schaerr Jaffe LLP who also testified, suggested that issues with Thomas' decision-making were tied to his race, calling the attacks a "high-tech lynching" — a callback to Thomas' own words describing the treatment he received during his Supreme Court confirmation hearings.

Thomas was the second Black justice to ever serve on the court.

But others pushed back against the suggestions of racism.

"I believe that Black men in America face racism and that Justice Thomas likely has faced racism in his past," Donald Sherman, vice president and chief counsel of Citizens for Responsibility and Ethics in Washington, said in his testimony. "I also think that there are a litany of ethics abuses committed by Justice Thomas that raise significant questions about his conduct in his role as a Supreme Court justice."

Conservative legislators suggested sexism was at play, too.

"It now appears that my colleagues on the other side of the aisle have a problem with strong, assertive women when those women don't agree with them," said Rep. Steve Chabot, R-Ohio.

Stephen Gillers, a law professor at New York University Law School, argued that while he did not agree with the extent of Ginni Thomas' activism, she "has the right to do it." But when Ginni Thomas made a shift from activism to active participation — having interest in Supreme Court cases as "an insider" — is when his opinion on the ethics of her actions changed, he said.

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Reform for all justices or just some, lawmakers ask

Other justices' purported lapses were drawn into question as well.

Roth named an array of alleged ethical blunders, from a justice's failure to recuse from a case where they owned $250,000 worth of shares in one party's parent company (Chief Justice John Roberts) to a different justice's omission on a financial disclosure report of the fact that a public university paid for as many as 11 rooms for her in a fancy hotel (Justice Sonia Sotomayor).

After alluding to dozens more transgressions, Roth quipped, "And none of those justices just referenced was Clarence Thomas."

Since 2011, Fix the Court has logged 52 ethical lapses among justices appointed by Republicans and Democrats alike.

"For an institution whose currency is credibility, this is an abject failure," Sherman said.

Rep. Mike Johnson, R-La., argued that Democrats hold different sets of standards for conservative and liberal justices and judges, while Rep. Jim Jordan, R-Ohio, called the hearing and conversations around ethics reform a "partisan attack on the highest court of the land."

Former Justice Ruth Bader Ginsburg's record received numerous mentions throughout the hearing, comparing her to Thomas and questioning why outcry did not follow her decisions not to recuse in cases tied to family members or her comments on Trump.

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Bills about firming up Supreme Court ethics have been introduced since 2011, but they haven't been passed. However, Congress on Wednesday passed the Courthouse Ethics and Transparency Act, which would require federal judges — including Supreme Court justices — to report financial transactions of stocks or other securities worth more than $1,000 within 45 days.

That bill is on its way to President Joe Biden's desk.

Contributing: Erin Mansfield, Phillip M. Bailey

This article originally appeared on USA TODAY: Supreme Court justices' ethics hotly debated at congressional hearing