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The new Supreme Court term began Monday with a bit of a surprise: Justice Clarence Thomas actually recused from a case.
The recusal, in an appeal the justices just rejected, stood out not only because it amounted to Thomas acknowledging that some ethical guardrails exist at the court, but also because the rejected petitioner was John Eastman — his former law clerk, who’s better known these days as a criminal defendant and alleged co-conspirator in the 2020 election subversion prosecutions in Georgia and Washington, D.C., respectively.
It’s also notable because, as watchdog group Fix the Court pointed out, the Republican-appointed justice previously had not stayed out of appeals related to the House Jan. 6 committee, like the one rejected Monday. Thomas is, of course, married to Virginia "Ginni" Thomas, who backed efforts to overturn Donald Trump’s 2020 loss to Joe Biden.
Thomas didn’t explain why he stayed out of this one. Rather, as happens with other justices, the notation rejecting Eastman’s long-shot appeal — which, per usual court practice, wasn’t explained either — simply said: “Justice Thomas took no part in the consideration or decision of this petition.” That same language is found in other justices’ recusals Monday, which came as part of a lengthy orders list that mostly consisted of rejected petitions (though Justices Ketanji Brown Jackson and Elena Kagan did cite reasons for their recusals in other cases).
Whatever Thomas’ reasoning, the recusal issue isn’t going away at the court, which has been rocked by ethical scandals mainly caused by Thomas himself. To that end, a fellow GOP appointee, Justice Samuel Alito, recently gave an unconvincing explanation for why he isn’t backing out of an upcoming tax case this term.
Relatedly, Thomas’ recusal further raises the question of whether he’ll stand down in another pending case, which could overturn a long-standing precedent that has been targeted by big business interests hoping to curb regulations.
That appeal, Loper Bright Enterprises v. Raimondo, intersects directly with the ongoing Thomas scandal. That’s because ProPublica’s latest reporting on the justice detailed his connections to the Koch network that’s aiming to take down that long-standing precedent, called Chevron.
But will Thomas heed calls to recuse in Loper Bright or any other Koch-backed cases?
That would be surprising, because it would amount to Thomas conceding there’s merit to the scrutiny that’s been brought to bear on him of late. But if nothing else, Monday’s recusal shows it’s something he knows how to do — and, now recently, has done — so it’ll be that much more glaring if he doesn’t.