Justice Clarence Thomas was the deciding vote in a case he never should have heard

Even before the Supreme Court practically nullified the 14th Amendment’s clause banning insurrectionists and their supporters from seeking federal office, another decision all but ensured that outcome. And it was made by a single justice: Clarence Thomas.

The court’s March 4 ruling reversed a finding by Colorado’s highest state court that Donald Trump was barred from appearing on the state’s ballots because of his role in the Jan. 6, 2021, violent siege on the US Capitol building, as well as his efforts to pressure state officials, members of Congress, and his own staff to steal the election on his behalf.

Though the Supreme Court’s judgment to reverse was unanimous, the breadth of its reach was not: By a 5-4 split vote, the court held that state officials can’t stop oath-breaking insurrectionists from seeking federal office unless Congress passes a law allowing it. That, of course, isn’t likely to happen because of the current makeup of Congress, and the justices know this. That means Thomas ended up being a deciding vote in a decision that can have catastrophic consequences.

And he should have played no part in the case’s consideration.

That’s because on that Jan. 6, in the crowd of onlookers who descended on the nation’s capital and gathered at the Ellipse at Trump’s invitation — “will be wild!” he promised — was Virginia “Ginni” Thomas, the justice’s wife.

We would later learn that Ginni Thomas had also lobbied dozens of state lawmakers to choose fraudulent presidential electors and texted Trump’s chief of staff to urge him to “release the Kraken” and embrace the conspiracy theories of attorney Sidney Powell, who now stands criminally convicted for her efforts in the scheme.

These facts led to numerous calls for Thomas to recuse himself from the Colorado ballot case.

The court’s own code of conduct, released by the justices in November amid burgeoning public outcry after a flurry of reported ethics lapses by several justices, including Thomas, makes it clear he should have sat the case out.

On that Jan. 6, in the crowd of onlookers who descended on the nation’s capital and gathered at the Ellipse at Trump’s invitation — ‘will be wild!’ he promised — was Virginia ‘Ginni’ Thomas, the justice’s wife.

Canon 3B of the code states that “a Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.”

It goes on to list a series of examples of such appearance of bias, including if the justice or the justice’s spouse has any “interest that could be affected substantially by the outcome of the proceeding” or is “likely to be a material witness in the proceeding.”

We know that Ginni Thomas was indeed a witness in the House Jan. 6 Committee’s probe of the events surrounding the Jan. 6 coup attempt, and the committee’s report was evidence in the Colorado court’s determination that Trump was an insurrectionist.

“The court, by saying only Congress can do something we know Congress won’t do, is effectively protecting not only Donald Trump but Ginni Thomas as well,” James Sample, a constitutional law professor at Hofstra University, told me. Sample is among the experts who testified before the US Senate urging more enforceable ethics rules, including those governing recusals, for the Supreme Court’s justices.

But leave it to the court to insert a get-out-of-recusal exemption in its own nonbinding guidelines. In the commentary attached to the court’s conduct code is a long discussion of what the court calls the “rule of necessity” — a presumption that a justice is not disqualified, because of the perils of any justices sitting out a case.

Understand that this supposed rule is completely made up, a creation of the very body it is applied to. But according to the commentary, recusals “may undermine the ‘fruitful interchange of minds which is indispensable’ to the Court’s decision-making process” and can be “effectively the same as casting a vote” for the party seeking review. The commentary cites no binding precedent for this proposition.

It also points out that a recusal could result in a 4-4 tie, automatically affirming the lower court’s decision. That is true. But that is how the system works. It’s by design, not a flaw.

“In short, much can be lost when even one Justice does not participate in a particular case,” the commentary states. Never mind that lower courts have binding recusal rules that seem to work just fine. The code federal trial and appellate judges must follow says they “shall” recuse themselves if there is an actual or apparent conflict. The Supreme Court’s guidelines state only that they “should.”

It’s as if the justices forgot about the 14-month period when there was a vacancy on the bench caused by Justice Antonin Scalia’s death and lengthened by then-Senate majority leader Mitch McConnell’s stalling tactics to thwart then-president Barack Obama’s ability to appoint a replacement.

“Somehow the court found it perfectly acceptable to operate with only eight justices for the entire time that Merrick Garland was not even receiving a hearing to replace Justice Scalia,” Sample said. “Compare that to one justice sitting out one case.”

So Thomas’s excuse to flout recusal guidelines was already written into the very toothless rules that govern him. As a result, our democracy has lost another guardrail: It is easier than ever for those who sought to upend our elections to rise to power. That will be the lasting legacy of the Roberts court. Or is it the Thomases’ court?