Justice Thomas Can't be Fired But He can Get Impeached and Kicked Out }How?
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Clarence Thomas and Virginia Thomas leave a funeral service. Supreme Court Justice Clarence Thomas, left and his wife Virginia Thomas, right, leave the funeral services of the late Supreme Court Justice Antonin Scalia in 2016. | Pablo Martinez/AP |
Opinion by KIMBERLY WEHLE
Kimberly Wehle is a professor of law at the University of Baltimore School of Law.
Revelations that Virginia Thomas exchanged at least 29 (known) text messages with former White House chief of staff Mark Meadows, urging disruption of the November 2020 election results favoring President Joe Biden, have created a conflict-of-interest scandal surrounding the Supreme Court, where her husband Clarence Thomas is an associate justice. Justice Thomas’ participation in multiple cases related to the outcome of the election, including his lone vote to prevent the Jan. 6 committee from accessing White House records relevant to its investigation of the riot at the Capitol, has led to calls for ethics reforms at the court — as well as his resignation. Given the unlikelihood of admission of impropriety from Thomas, there is a more extreme avenue available to lawmakers who would seek to hold him accountable for compromising the neutrality and legitimacy of the court: impeachment.
Absent fuller facts as to Thomas’ potential involvement in his wife’s efforts, it’s too soon to tell whether impeachment is substantively warranted. After two failed attempts to convict former President Donald Trump on impeachment charges — not to mention former President Bill Clinton’s acquittal before that — impeachment as a remedy for malfeasance in office has become mostly obsolete. Democrats in Congress are so far unwilling to venture down this politically fraught path, but the precedent exists, and it is worth studying as new damning details emerge about Virginia Thomas,’ who is known as Ginni, campaign to overturn the election.
Over the country’s history, 15 federal judges have been impeached, and eight removed from office; others resigned in the wake of scandal instead. So one thing, at least, is clear: Unlike presidents, there is ample precedent for firing federal judges via impeachment. Though no Supreme Court justice has ever been removed this way, there have been two attempts. Thomas is not immune to this constitutional remedy simply by virtue of sitting on the nation’s highest court.
Moreover, the standard governing judges’ removal is arguably lower than that for presidents. To be sure, Article I’s reference to “Treason, Bribery, or other high Crimes and Misdemeanors” governs judges and presidents alike — as does the two-step procedure outlined in the Constitution, whereby articles of impeachment pass the House of Representatives on a bare majority vote, and conviction in the Senate occurs after trial by a two-thirds supermajority. The supermajority threshold ensures that Thomas would almost certainly never be removed from office, however ugly the facts are upon investigation because it’s inconceivable Senate Republicans would vote against Thomas and give Biden another Supreme Court pick.
But Article III of the Constitution injects a separate standard for federal judges keeping their jobs, expressly providing that they “shall hold their Offices during good Behaviour.” Arguably, “high Crimes and Misdemeanors” should be read with this gloss when it comes to judges, as the Constitution rarely offers such particularized clues as to the thrust and meaning of its terse prose.
Congress looked deeply into the grounds for impeaching federal judges in 1970, during an inquiry by a special subcommittee of the Judiciary Committee into the conduct of Associate Supreme Court Justice William O. Douglas. At President Richard Nixon’s behest, then-Republican House Minority Leader Gerald Ford called for the impeachment of the famously liberal Douglas. The allegations included conflicts of interest (Douglas sold an article to a magazine and didn’t recuse himself when a libel case against it later reached the Supreme Court and, separately, had been paid to run a foundation whose namesake purportedly had criminal associations), and political leftism (Douglas’ recent book, Points of Rebellion, Ford said, “fanned the fires of unrest, rebellion, and revolution.”) After a six-month investigation, the majority-Democratic committee voted along party lines to take no action.
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| Supreme Court Justice William O. Douglas is shown at his office desk in 1963. | AP Photo |
But the committee did produce a lengthy report that actually helped clarify the standard for removal. It opined on the behavior for which judges can be impeached, that is, for criminal conduct (either in connection with their judicial role or privately) or for abuse of public duty. The report also cited the federal statute governing federal judicial recusals, 42 U.S.C. § 455. It still provides: “Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.” By its terms, then, this law applies to Supreme Court justices, though there exists no means of enforcing it short of impeachment. (Those who claim the Supreme Court has no code of conduct may be overlooking this.) The statute goes on to state that justice should recuse himself “[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding” or “[h]e knows that he ... or his spouse has [an] interest that could substantially be affected by the outcome of the proceeding.” (Emphasis added.)
Ginni Thomas’ far-right activism is well-known. Earlier this month, Thomas told an interviewer that she attended a Jan. 6 “Stop the Steal” rally in Washington, though she says she was cold and left before the Capitol was breached. In December, she co-signed a letter calling for House Republicans to expel Rep. Liz Cheney (R-Wyo.) and Rep. Adam Kinzinger (R-Ill.) simply because they joined the House Select Committee investigating the Jan. 6 attack on the Capitol. And so on.
The leaked texts, which were part of a trove of documents Meadows gave the committee, are especially troubling. Three days after the election, she texted Meadows: “Do not concede. It takes time for the army who is gathering for his back.” And later: “Make a plan. Release the Kraken and save us from the left taking America down.” On Nov. 10, 2020, Thomas texted Meadows: “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.” In another note responding to Meadows’ characterization of the election as a “fight of good versus evil,” she texted: “Thank you!! Needed that! This plus a conversation with my best friend just now. … I will try to keep holding on. America is worth it!”
If Ginni Thomas was simultaneously discussing these efforts with her husband (they reportedly refer to each other as “best friends”), it means, first, that Clarence Thomas — at a minimum — was aware of concerted efforts to thwart a legitimate presidential election on factually erroneous grounds and did not make that known.
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| Thomas was appointed by George H. Bush, ex of the CIA and a Deep republican he knew where the bones were buried, picked a rabid anti-gay man, anti-woman, anti-black, and don't say Thomas is black. He has done not one thing for his race but for the white because I think he thinks he is white. Looks at his wife, not just that she is white but she is anti-everything as he is. These are dizygotic twins. These are Trumpie guys and the guy Trump wishes he would have picked for Justice. |
Second, and worse, the texts call into question the grounds for Thomas’ votes in a number of cases that came to the court regarding the 2020 election. Thomas and Justice Samuel Alito were the sole two dissenters in Texas Attorney General Ken Paxton’s failed bid to file a lawsuit seeking to overturn the election results in four other states. (The problem with that lawsuit, in part, was that there exists no legal cause of action for one state to reach out and cancel votes in another state; so the suggestion that Thomas was just applying established law is dubious.)
Thomas also dissented at length to the court’s refusal to upset Pennsylvania’s acceptance of mail-in ballots that arrived after Election Day, calling the majority’s decision “inexplicable.” And most disturbingly, Thomas was the only justice to dissent — without explanation — from the court’s decision backing the National Archives' release of Trump administration documents to the select committee. (Justice Brett Kavanaugh penned a separate statement, noting his view that there might be circumstances in which a former president, here Trump, could assert the presidential communications privilege over a sitting president’s contrary posture.) The compelling question is whether Thomas had improper ulterior motives when he voted in these very consequential cases.
Federal judges have been impeached and removed for transgressions that, although serious, seem much less impeachable because they had no bearing on the viability and stability of American democracy. This stands in stark contrast to what could amount to Thomas’ judicial cover-ups for his wife’s activities and apparent complacency about events leading up to the Jan. 6 insurrection.
John Pickering was removed in 1804 from a federal trial court position for mental instability and intoxication. Robert W. Archbold was impeached in 1912 and removed in 1913 from an appellate court post on charges of having an improper financial relationship with litigants. Halsted L. Ritter was impeached and removed from the district court in Florida in 1936 for exercising favoritism in appointing bankruptcy receivers and practicing law on the bench. Most recently, in 2010, G. Thomas Porteous, Jr. lost his seat on the U.S. District Court for the Eastern District of Louisiana for accepting bribes and committing perjury.
The only Supreme Court justice to be successfully impeached was Samuel Chase in 1804, on charges of arbitrary and oppressive conduct during trials (at that point the Supreme Court conducted trials; it no longer does). The Senate acquitted him. In 1969, after President Lyndon B. Johnson nominated him to replace Earl Warren as the chief justice, Associate Justice Abe Fortas resigned from the court under threat of impeachment. Although conservative senators ostensibly filibustered Fortas’ nomination to be chief justice based on his acceptance of a $15,000 fee for attending university seminars, he was under scrutiny for his close relationship with Johnson while on the court. If Congress probes more deeply into the scandal of today, Thomas’ career could similarly be in jeopardy — even if formal conviction and removal is a practical impossibility.
Keep in mind, too, that his colleagues on the court’s conservative majority couldn’t “save” Thomas if Democrats managed to pass impeachment articles. The question of what behavior justifies impeachment and removal of a Supreme Court justice must be resolved — if anywhere — in Congress alone. The meaning of “good Behaviour” or “high Crimes and Misdemeanors” when it comes to the justices’ own obligations would doubtlessly be deemed a “political question” that’s non-justiciable, i.e., too close to home.
At a minimum, Thomas’ apparent involvement in the subject matter of the Jan. 6 committee’s work must be fully investigated by the legislative branch. The committee has already signaled a plan to question Ginni Thomas and could seek her husband’s testimony, as well. The Senate Judiciary Committee just held confirmation hearings on the nomination of Judge Ketanji Brown Jackson to fill Justice Stephen Breyer’s seat. It, too, could take up the task of ascertaining whether a sitting Supreme Court justice compromised his solemn vow to uphold the Constitution in connection with the peaceful and legal transfer of presidential power on Jan. 6, 2021. A decision in either body to undertake a formal investigation would not require a supermajority vote, mind you — just political courage around what is perhaps the most solemn task ever to face the U.S. Congress: protection of the American system of government itself.
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