Washington, DC – Senator Sheldon Whitehouse (D-RI) and Congressman Hank Johnson (D-GA), Chairmen of the Senate and House Judiciary Courts Subcommittees, wrote to Chief Justice John Roberts today calling on Justice Clarence Thomas to recuse himself from any case related to the January 6th insurrection. The chairmen point to how the ardent advocacy to overturn the results of the 2020 election by Justice Thomas’s wife Virginia (Ginni) would lead any reasonable person to call the justice’s impartiality into question in ruling on cases involving January 6th.
Whitehouse and Johnson have worked extensively on issues of Supreme Court ethics from their leadership positions, and led the charge to address conflicts of interest at the Court – including addressing concerns with recusal. In 2021, they called on Justice Amy Coney Barrett to recuse herself from Americans for Prosperity Foundation v. Bonta based on well-established law and Supreme Court precedent. In that case, the dark-money group bringing the claim before the Court, Americans for Prosperity Foundation, is the corporate sibling of a group that spent heavily to confirm Justice Barrett.
The Courts Subcommittee chairmen have also raised concerns over recusal with President Biden’s Commission on the Supreme Court.
Full text of Whitehouse and Johnson’s letter to Justice Roberts is below. A PDF copy is available here.
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Dear Chief Justice Roberts:
As Chairmen of the Senate and House Judiciary Federal Courts Subcommittees, we write to emphasize the specter of partisanship raised by Justice Thomas’s failure to recuse himself in cases involving the 2020 election or the January 6th attack on the Capitol. Because this episode threatens to tarnish the integrity of and public confidence in the Supreme Court, we urge you to take appropriate steps to ensure that Justice Thomas will recuse himself in all such future cases.
Following the 2020 election, Virginia “Ginni” Thomas communicated extensively with then-White House Chief of Staff Mark Meadows, encouraging the White House to challenge the election results and resist the peaceful transfer of power.[1] These and other communications trigger Justice Thomas’s obligations under federal law. That statute provides that a judge must recuse from any case “in which his impartiality might reasonably be questioned,” particularly when his spouse has “an interest that could be substantially affected by the outcome of the proceeding” or when he has “personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(5), (b)(1).
You have repeatedly resisted criticism that the Court is a political institution.[2] Now, you have a concrete opportunity to support that position. The widespread outcry against Justice Thomas’s previous failure to recuse himself is proof enough that Justice Thomas’s “impartiality might reasonably be questioned” in any future litigation involving the January 6th attack or the efforts to overturn the 2020 election results. These concerns are particularly acute given the partisan nature of the communications. As Chief Justice, your duty to safeguard public faith in the judiciary obligates you to prevent the further undermining of the Court’s legitimacy by prevailing on Justice Thomas to heed his ethical and statutory requirements in future cases involving these issues.
You recently announced that the federal courts “expect judges to adhere to the highest standards” because “public trust is essential, not incidental, to our function.”[3] You emphasized that “[t]he Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work.”[4] Now is the time to put these words into action.
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Rich Davidson (Whitehouse), 202-228-6291
Andy Phelan (Johnson), 404-593-9126
