HYPOTHETICALLY SPEAKING

A Town Board, after contentious discussion, votes 4-3 to build a multi-million-dollar waste disposal facility adjacent to the Jones family home. Jones hires a lawyer, who files a petition with the Town Board urging reconsideration and reversal of that decision on a number of grounds, principally that the project violates existing zoning and environmental laws.  

While the matter is under consideration, Jones learns that the company that was awarded the contract to construct and run the waste facility is owned by a limited liability corporation owned by one Eliza Smith, who is the spouse of Harold Smith, one of the town Councilman who voted for the project. 

Jones again petitions the Town Board for reconsideration, and this time demands that Smith abstain from the voting. Smith refuses to recuse. Jones goes to court and seeks an injunction barring Smith from voting on the project because he has a clear conflict of interest and his participation is barred by an unambiguous Town statute.

 

There is little doubt, in my humble opinion at least, that an unbiased judge would grant the injunction and forbid Smith from voting on the project.

Now comes the fun part. Most of the balance of this piece is not hypothetical. 

Title 28 of the United States Code, sections 455(a), and 455(b)(5) provide as follows:

"(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:

.......

(5)He or his spouse ……

Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;"

Now it is hardly a secret that Mr. Justice Clarence Thomas is married to Ms. Ginni Thomas who is a well-known, active election-denier. In particular, in the State of Arizona, Ginni Thomas emailed 29 Arizona legislators urging them to choose new electors – i.e. different from the ones chosen by the voters. One of the new "fake electors" was to be Ms. Kelly Ward, Chair of the Arizona Republican Committee, and also an active election-denier.

Metadata from Kelly Ward's phone was subpoenaed by the Jan6 committee.  There is no doubt that Ms.Ward's sympathies on the subject of election denial were similar if not identical to those of Ginny Thomas. 

Ms. Ward challenged her subpoena on the grounds that it was a violation of her First Amendment rights. She lost in the District Court, lost in the Circuit Court, and sought appellate review by the Supreme Court.

Mr. Justice Thomas, in an indefensible violation of federal law, failed to recuse himself and voted to reverse the lower court decisions and to support Ward's effort to block the subpoena. (There is even the possibility that among the metadata on Ms. Ward's phone is one or more communications with Ginni Thomas!) Justice Thomas nevertheless refused to recuse. He not only participated in Ward's appeal, but voted to reverse the lower courts and quash the subpoena. Happily he was in a minority of two (yup, you guessed it, Alito).

And this was not the first time that Mr. Justice Thomas was involved in the defense of Trump. He voted to block the release of Trump documents from the national archives to the January committee. On that case, he was the single Justice to vote to sustain Trump's claim.

(And let's not forget Eastman's suggestion on behalf of Trump, that somehow they get a motion before Thomas who would sit on it and delay the matter until after January 6, which would help the success of the fake elector scam.)

So what's the remedy? Over and over again, in congressional testimony and otherwise, we hear the Attorney General of the United States and members of Congress, and our judiciary repeat the mantra "No man is above the law." The phrase is almost always raised these days in connection with Donald Trump. But doesn't it also apply to Clarence Thomas? Clearly he is not above the law either. The statute requiring his recusal specifically refers to "any justice ... of the United States." 

So what is the remedy to block the plainly illegal activity of the man who apparently believes his robe makes him an exception to the rule of law?

So far, no remedy has been apparent. Journalists, editorial writers, politicians have all been crying in their beer, but nobody does anything about it!

So here's my plan:

The very next time Thomas fails to recuse himself when required to do so by 28 USC 455, the Attorney General, or the Chair of the appropriate congressional committee, or the District Attorney of Georgia, --whomever the prosecutor may be -- should seek an injunction barring Thomas's participation in the matter. 

Would a District Judge have the cajones to enjoin a Supreme Court Justice? Surely, there are some, if not many, who would do so in such a clear-cut case. The same question would apply to the Circuit Court that would undoubtedly be involved immediately following any District Court decision on the matter. And then there is the substantial likelihood that whatever the Circuit Court decides, the losing party will seek review by the Supreme Court of the United States. 

And now the fat will be in the fire with the Justices of the United States Supreme Court  facing the possibility of the national – indeed international – disgrace of, one way or another, granting one of their number the singular right to be immune from federal law, or finding some way to duck the question. Or enjoining one of their members from participating in a case before the Court!

I know, I know, the likelihood of this pattern developing is extraordinarily slim but it sure is fun to think about it, non?

A bientot.

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