Justice Clarence Thomas might be asked to testify before the Senate Judiciary Committee in the coming weeks. Politico reported on Monday that Democrats are planning a hearing on the Supreme Court’s ethical standards, few of which Thomas hasn’t reportedly blown past over his time on the court.
But Thomas’s testimony, incredibly, isn’t a certainty. Despite numerous ethical lapses ranging from not recusing himself from suits involving his wife, GOP activist Ginni Thomas, to the current scandal regarding his relationship with his billionaire benefactor, Harlan Crow, there is no mechanism for restraining Thomas’ behavior that anyone in power is willing to use. Instead, he and his fellow justices, with the tacit approval of their fellow elites, for all intents and purposes sit above the laws that they adjudicate.
There is no mechanism for restraining Thomas’ behavior that anyone in power is willing to use.
For every level of potential accountability, there’s some excuse stonewalling actual consequences for Thomas. Inside the court itself, Chief Justice John Roberts sits as first among equals, but the mostly administrative role gives him little formal authority to dole out punishment to the junior members. Despite urging from Democratic lawmakers “to safeguard public faith in the judiciary,” there’s little evidence that Roberts will roil the status quo and exert any sort of substantive authority over Thomas.
That stands in contrast to lower court judges, who are subject to the Code of Conduct for United States Judges. Those rules are drawn up by the Judicial Conference, the policymaking arm of the federal courts, which is made up of the “chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit,” with Roberts serving as the presiding officer. For example, the conference recently updated its guidelines on what counts as “personal hospitality” that’s required to be included on annual financial disclosure reports. The code applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”
You may note though that Supreme Court justices were not mentioned in that list. Roberts has said that the justices “consult the code of conduct” established by the conference “to resolve certain issues.” But that’s about as far as the conference’s authority extends in this case.
Justices Samuel Alito and Elena Kagan both agreed during a House Appropriations Subcommittee hearing in 2019 that “there were practical and constitutional reasons it would be unworkable to try to apply the code of conduct that governs the rest of the federal judiciary to the Supreme Court.” Their argument is that under Article III, the Supreme Court sits atop the judicial system, with other courts established not through the Constitution but through Congress. It doesn’t make sense, then, to have members of the lower courts that make up the Judicial Conference’s membership be given such influence over the high court. The Supreme Court could set up its own code of conduct — but after four years of discussions, the justices “failed to reach a consensus” on what those guidelines would look like, The Washington Post reported in February.
This brings us to Congress and the president, which as co-equals to the Supreme Court in theory have checks they can impose on its functions. But there are both separation of powers and outright political issues that have kept the two political branches from even really trying in recent years.
Returning to the potential hearing in the Senate, there’s no reason to expect that Thomas will welcome the chance to appear before the Judiciary Committee. The last time he did so, during his confirmation hearings with Anita Hill’s accusations of sexual harassment hanging over him, he was dismissive and aggressive toward any question he deemed hostile. That’s if he even chose to show up — and I highly doubt he would.
This solidarity between Republicans and Thomas is itself a slap in the face to the idea that he is in any way neutral or independent. Any attempt to subpoena him would be justified under the court’s own standards when dealing with separation of power issues. But it’s hard to believe that Thomas wouldn’t sue to have it quashed, citing the risk such a move would supposedly pose toward judicial independence. More practically, thanks to the ongoing absence of Sen. Dianne Feinstein, D-Calif., Judiciary Democrats lack the votes to force the issue anyway so long as Republicans remain united in opposition. And the GOP will remain united on that front, especially so long as Thomas’ actions can’t be directly tied to any of his decisions. This solidarity between Republicans and Thomas is itself a slap in the face to the idea that he is in any way neutral or independent. It dooms the chances of legislation passing either house of Congress that would constrain the Supreme Court’s members. And there’s always the chance that the court would later find any such legislation oversteps Congress’ authority. Impeachment is what founders intended as the ultimate check against a rogue justice, given the Constitution’s provision that a justice’s lifetime term was dependent on “good behavior.” The same factionalism that the founders failed to predict would transform the Electoral College, Senate confirmations and many other parts of our system has also corrupted the one lever that can dislodge a sitting justice. Only one justice has been impeached to date — and he was acquitted during his Senate trial, which bodes ill for the chances that Thomas will be the first to go. For now, it falls to the executive branch and the possibility of a criminal indictment as an avenue. But while it’s clear that Thomas violated the law in his choice not to disclose the benefits of his friendship with Crow, the politics of investigating a sitting justice would be daunting for any attorney general. Merrick Garland’s track record for avoiding controversy in particular leaves me skeptical that he would clear such an investigation without a green light from Roberts or Congress. And to be honest, it’s not even clear to me that a convicted justice would be able to be forced out of his seat without being impeached as well. It may be the case that a constitutional amendment would be required to actively rein in the Supreme Court. The fact is though that the overriding response from the very figures that should be most interested in balancing the court’s power have abdicated that responsibility. What judgement should we draw from that then, except that they deem Thomas’ behavior to be less morally offensive than it would be for the powerful to actually stand firm against corruption.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
