Did Justice Thomas violate 28 USC 455 during the Supreme Court’s latest no-good, very-bad week?

28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b)He shall also disqualify himself in the following circumstances:
[…]
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding (https://www.law.cornell.edu/uscode/text/28/455#).

While headlines about ex-President Trump’s no-good, very-bad weeks are getting to be a cliche, but the US Supreme Court had a pretty bad week, too. They didn’t garner as many headlines, but the justices are coming under increased scrutiny for their lack of any meaningful ethical oversight. And hearings involving two separate Supreme Court cases, one on Wednesday in the court’ chambers, and one the next day in the House of Representatives, put a spotlight on the ethical problem.

Of the two, a televised comment by Laurence Tribe of Harvard on Wednesday’s oral argument before the Supreme Court may be the most significant — even though it probably won’t lead to action anytime soon. The other, before the House Judiciary Committee, devolved into partisan name-calling. Judiciary Committee Chair Jerrold Nadler, D-N.Y., was right on the money when he said “Supreme Court justices cannot self-police their ethics. And we should not expect them to.” But the House will flip next months, and the incoming Republicans showed no interest in ethics reform, choosing instead to accuse a key witness of lying and characterizing the hearing as “part of an on-going campaign by Democrats to exert undue influence over the court.” No action likely there, either.

The first hearing was on Moore v. Harper, a North Carolina case in which the Republican state legislature argues it has the sole authority to draw congressional districts without oversight by the state supreme court. The “independent state legislature” theory, as it is known, was advanced by supporters of ex-President Trump to support his efforts to overthrow the 2020 election. A frequent guest on MSNBC, Tribe said Justice Clarence Thomas should have recused himself from the case but chose instead to involve himself in oral argument in spite of an obvious spousal conflict of interest. He told O’Donnell of MSNBC:

It’s obvious that Ginni Thomas has an interest. She was an active participant in the attempt to use something like the independent state legislature theory that was before the court, in the argument that was presented Wednesday, and Clarence Thomas happily participated anyway. And he was a very active participant In fact some of his questions were particularly pointed.

Here, for the record, is Tribe’s reasoning:

He tried to trap the Democratic defenders of this, the opponents of the independent state legislature theory, by saying ‘do you think you would still be arguing this if the state legislature had drawn lines that were were too favorable to racial minorities instead of the other way around and if the highest court of North Carolina has said that violates an anti-affirmative action provision of our constitution? He obviously thought he had trapped somebody. He didn’t succeed, but by trying to show it’s a question of whose ox is gored, he shined — or shone? whatever the word is — a spotlight on his own lack of disinterest in this matter.

But the question is moot, as Tribe acknowledged, because 28 USC 455 “cannot be enforced directly.”

The other case was Burwell v. Hobby Lobby Stores, Inc., decided in 2014. It was in the news Thursday because Jerrold’s House Judiciary hearing was called to consider reports of improper influence on the court. Justice Samuel Alito, among Thomas and others, was said to have been lobbied by Christian conservative interests seeking a ruling that would allow corporations to discriminate against LGBTQ people on religious grounds. They got the ruling the sought, but a whistleblower came forward last month alleging that Alito leaked the outcome of the Hobby Lobby decision before it was announced. (Alito denies the allegation.) It is one of an increasing number of complaints of ethical violations on the Supreme Court.

I’ve blogged about this before, and I’m going to blog about it again. In November, when the reports of Alito’s alleged leak first came out, I started a post headlined “Money changers in the temple? Justice Alito’s leaks show dangers of too-cozy relationship between church, state.” It extensively quotes Dahlia Lithwick, who has long been one of my favorite Supreme Court watchers, on how “[t]raffic court judges in towns with four stoplights” know better. [I started it Nov. 24, but other things got in the way; I finished it and uplinked it Dec. 11. — pe]

News accounts of Thursday’s House Judiciary hearing tended to be perfunctory, although the Washington Post has a good, objective summary of testimony and the partisan back-and-forth on the committee. And Ellena Erskine, blog manager at SCOTUSblog, gets the essentials in her lede:

Efforts to bolster Supreme Court ethics standards gained little ground in a House Judiciary Committee hearing Thursday, as Democrats and Republicans butted heads over familiar talking points. In what will likely be the committee’s last hearing before the House majority changes hands, Democrats called former anti-abortion lobbyist Rev. Robert Schenck, along with ethics and legal experts, to testify in support of strengthening ethics standards at the court.

Schenck made headlines last month when he told The New York Times that he had received advanced notice of the decision in Burwell v. Hobby Lobby Stores, Inc. from Gayle and Donald Wright, a couple who had dined with Justice Samuel Alito and his wife. Alito denied that he or his wife shared any information about the opinion. Gayle Wright denied that she or her husband, now deceased, had learned the outcome from the Alitos.

Until recently, Schenck ran a 20-year campaign he called Operation Higher Court through which he recruited wealthy donors to befriend and influence conservative justices. These donors, called “stealth missionaries,” were instructed to strengthen the beliefs of justices who “shared our conservative social and religious sensibilities” through private dinners, prayer circles, and vacations. [Links in the original]

There’s more (although not very much). But this excerpt from Schenck’s testimony jumped off the page at me:

“I believe we pushed the boundaries of Christian ethics and compromised the high court’s promise to administer equal justices,” Schenck said of his campaign at the court. “But I’m also conscious we were never admonished for the type of work our missionaries did. Quite to the contrary. In one instance Justice Thomas commended me, saying something like, ‘Keep up what you’re doing. It’s making a difference.’”

Indeed it has.

Three sound bites from Forbes Breaking News, which seems to exist more to promote owner Steve Forbes’ somewhat idiosyncratic political views than to provide impartial Capitol Hill coverage. I’ll bet you can’t guess which ones got the most clicks (answer below).

• JUST IN: Top Republican Slams Democrats’ Allegations Against Justice Alito. At today’s House Judiciary Committee hearing, Rep. Darrell Issa (R-CA) spoke out against Democrats’ claims about the Supreme Court.
• Jim Jordan Directly Calls Out Chuck Schumer At Tense Hearing. At today’s House Judiciary Committee hearing, Rep. Jim Jordan (R-OH) spoke out against Democrats’ claims about the Supreme Court.
• Jerry Nadler Lobs Damning Accusation Against Justice Samuel Alito. At today’s House Judiciary Committee hearing, Rep. Jerry Nadler (D-NY) spoke out about Justice Samuel Alito’s alleged ethics issues.

Answer: The clips featuring Reps. Issa and Jordan were second and third in today’s directory (Dec. 10), following PBS NewsHour’s livestream (all 3:12:06 of it); Rep. Nadler’s remarks came in ninth.

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Recommended [by SCOTUSblog] Citation: Ellena Erskine, Reverend who accused Alito of 2014 leak in Hobby Lobby speaks before House Judiciary Committee, SCOTUSblog (Dec. 9, 2022, 4:45 PM), https://www.scotusblog.com/2022/12/reverend-who-accused-alito-of-2014-leak-in-hobby-lobby-speaks-before-house-judiciary-committee/

[Published Dec. 10, 2022]