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Justice Thomas Could Be Sidelined Under Supreme Court ‘Model’ Ethics Code

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OPINION: This article may contain commentary which reflects the author's opinion.


Outside groups have introduced a new proposal for the U.S. Supreme Court to adopt a new “model” ethics code that could thrust Justice Clarence Thomas further into the political limelight.

“The proposed guidelines from so-called independent government watchdogs Project on Government Oversight and Lawyers Defending American Democracy would put in place ‘more stringent guidelines for recusal.’ The guidelines would be so strict that if they were in effect last year, it may have prevented the high court’s eldest Republican-appointed justice, Thomas, from participating in a case involving the release of Trump administration records to the House committee investigating the Jan. 6 Capitol riot,” the Washington Examiner reported.

“Such a provision would clearly have forbidden Justice Clarence Thomas from participating” in the 2022 case, NPR’s Nina Totenberg reported Thursday.

The outlet added:

Thomas was the single dissenter when the rest of the court refused former President Donald Trump’s effort to block those records from disclosure, materials that later revealed Thomas’s spouse communicated with top Trump White House officials, showing her calls for them to take actions to block certification of the 2020 election results that cemented President Joe Biden’s victory.

The 27-page “Model Code of Conduct for U.S. Supreme Court Justices,” published March 9, mentions the word “spouse” a total of 14 times and highlights on page five that “certain conduct by a spouse or other close family members of a Justice would require that Justice to recuse,” according to a copy reviewed by the Washington Examiner.

While the report does not mention justices or their spouses by name, its greatest impact could be leveled at Ginni Thomas, a prominent conservative activist, and attorney. Under the code, justices and their close family members would be barred from “exploiting the judicial position” and “engaging in political” activity that presents the appearance of partisanship.

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“Spouses are mentioned 12 times in the current code for the lower court judges,” Fix the Court founder Gabe Roth told the Washington Examiner. “Two things can be true at the same time: One, there is value in having an ethics code that the justices can measure their behavior against and the public can measure the justices’ behavior against. Two, it can be sort of operationally difficult to have a code without having some enforcement mechanism if the code is violated.”

The U.S. Supreme Court recently delivered a round of crucial decisions on immigration.

The nation’s highest court recently ruled that illegal aliens detained for six months do not have the legal right to a bond hearing for release.

The case was brought to Court under the Trump administration and was inherited by the Biden administration, which continued to pursue the previous administration’s fight.

Biden was criticized for the move, with the American Civil Liberties Union claiming the administration was “decidedly on the wrong side of this fight.”

In an opinion by Justice Samuel Alito, the court held that the statute does bar class-wide injunctive relief, leaving open the possibility of injunctive relief for multiple named plaintiffs.

Alito wrote, “It generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.”

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The Supreme Court will be delivering several major rulings this year on immigration-related cases.

One of the cases being closely watched involves Title 42.

The Supreme Court ruled in December to keep the Trump-era rule in place for now, while other legal challenges to the policy play out in other courts. The court will hear arguments in the case in February before making a final decision.

Title 42 is a law giving the federal government the power to shut down the border as an emergency action. It was put in place under then-President Donald Trump in March 2020 and has prevented hundreds of thousands of migrants from seeking asylum in the U.S.

Trump used Title 42 in 2020 when the COVID pandemic broke out worldwide. Since it was enacted, over two million migrants have been expelled. President Joe Biden also left the rule in place.

One of the other major cases before the Supreme Court is the Deferred Action for Childhood Arrivals program that started under former President Barack Obama.

The Supreme Court has also been dealing with an internal investigation into who might have leaked a draft opinion in the landmark Dobbs v. Jackson case last May.

The security of documents at the Supreme Court was minimal and included what are called “burn bags” that were simply left in hallways, CNN reported.

The Supreme Court released its report last month into its investigation, which concluded without identifying the source of the leak to Politico last year.

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