Q&A: Does the Supreme Court Have an Ethics Code?

Text messages from Supreme Court Justice Thomas' wife has lead to calls for him to step down or even be impeached. Rob Michaelson and Sue O'Connell look into the history of ethical concerns in the Supreme Court.

How Disclosures Work

Rob: Lots of professions require disclosures to employers or customers to avoid conflicts of interest. Some don't. But you may be surprised to find there aren't many guidelines on how a United States Supreme Court justice has to behave. Sue is here to explain.

Sue: Yeah, you know, Rob, what's wild is in news, you have to disclose to our employer where our spouses. I don't have one, but if I did, I'd have to tell them where my spouse works. And I would have to stay away from reporting or covering stories that my imaginary spouses business might be involved in if I didn't. You know what would happen? I'd get fired, right? That makes sense.

The Lack of an Ethics Code in the Supreme Court

Rob: But if I were a Supreme Court justice, I'd be required to recuse myself if my impartiality might reasonably be questioned. But there's no real enforcement mechanism, right?

Sue: Yeah, right. So there's no stick to make you do that. The Supreme Court is the only federal judicial panel in the entire country not to be governed by an ethics code to guard against corruption and conflict of interest. And we're talking about this rob today because of the breaking news that's been happening about the communications between Ginni Thomas and she's the wife of sitting Supreme Court Justice Clarence Thomas. She had communications regarding overturning the results of the presidential election of 2020 and her activism during his tenure. It's really renewed calls for some sort of ethics code, or maybe impeachment of Justice Thomas.

Why His Wife's Texts Are a Concern

Rob: All right. So these texts got exposed, but they can't be that bad, right? I mean, I know we all text some crazy things to each other.

Sue: They're pretty bad. You know, let's say Ginni Thomas has the right to free speech just like every single American. But the issue is also, is she having discussions with her husband, the sitting Supreme Court justice, regarding these texts to overthrow the election? And you might remember that Justice Thomas was the only dissenting vote against introducing evidence into the investigation of January 6th, where you think he might have known that his wife had sent one to or a bunch of texts to the chief of staff of former President Donald Trump? So he's already voted on something that his wife was involved in. Look at Supreme Court justices in the past have been in disagreement with their wives. One sitting justice voted for the ability for Americans to burn the flag while his wife had been protesting against it. But again, he didn't vote for what his wife wanted. So the conflict of interest wasn't that glaring.

History of Ethical Concerns in the Supreme Court

Rob: So without a real ethics code for justices, what could really happen?

Sue: Well, the justice could be strongly urged to retire or step down. And that happened once in 1969. Nine Abe Fortas He was a Supreme Court justice. He resigned under the threat of impeachment. Fortas had financial conflicts. He was a paid consultant to the family foundation of a man who was under investigation for securities fraud. Or they could be impeached. But since the Supreme Court first convened back in 1790, only one has ever been impeached, and that was in 18 04 when Justice Samuel Chase was impeached. They say he was impeached on politically motivated charges. So he was eventually acquitted and he served on the court until his death in 1811.

How Do You Impeach a Supreme Court Justice?

Rob: All right, so let's say we're going to get to that point. We're going to impeach a justice. What does that look like? Is it the same as a president or any other position?

Sue: Yeah, that's right. It's just like impeaching a president. First, the House of Representatives, they draft the articles of impeachment. And if they get a majority, they vote to impeach. But then the Senate needs two thirds majority to convict. But as you know, Rob, because we've talked about it a lot, the Senate is split with 50 Republicans and 50 Democrats. So in the Senate, it's unlikely that there would be a conviction of a sitting Supreme Court justice.

What Will Happen to Justice Thomas?

Rob: Who knows what's going to happen because this is such a strange case. I mean, I don't really know what the next steps are.

Sue: Yeah, I think that it's unlikely that Justice Thomas will retire or step down or be impeached. But it is bringing attention to the fact that the highest court in the land, the court that actually impacts each of us in our everyday lives in ways that we don't even pay attention to, doesn't even have an ethics code. And Rob, we are required to do more disclosure that a Supreme Court justices. And I got to tell you, that's a little disturbing to me.