Law and the American people require a remedy for what seems irremediable. Justices Clarence Thomas and Samuel Alito are both properly disqualified from participating in cases involving Donald Trump and the Jan. 6 coup attempt at the U.S. Capitol. Both insist, however, on participating regardless of ethical considerations and standards of judicial propriety.
As is well known, Thomas’s wife actively participated in encouraging the Jan. 6 bid to prevent the peaceful transfer of power, and Alito’s wife prominently displayed a symbol of support for the “stop the steal” movement, repeatedly flying an upside-down American flag at their home. With respect to cases involving Trump and Jan. 6, those varied actions create obvious appearances of impropriety for both Justices. Their wives’s actions, moreover, fall perfectly in line with the justices’ own established political and ideological views and further suggest possible conflicts of interest that strengthen doubts about their possible political bias in Trump cases. Those appearances of impropriety should require both to recuse themselves from all Trump-related cases.
The problem is that neither will withdraw from the cases. Notwithstanding grave reasons to recuse themselves, both insist on remaining involved. Their fierce determination to participate, otherwise puzzling, is itself highly suggestive.
While no compulsory legal remedy exists, the justices can salvage the situation by themselves policing the court’s institutional integrity. In the past the court has done just that by effectively excluding justices no longer able to act properly in their judicial capacity. Former Chief Justice Charles Evans Hughes, for example, reported two such incidents in his book “The Supreme Court of the United States” (1928). One occurred in the 1890s when members of the court concluded that Justice Stephen J. Field was no longer mentally able to perform his tasks. They deputized Justice John Marshall Harlan to talk with Field and encourage him to resign. Although the effort angered the enfeebled Field, he resigned shortly thereafter. Similarly, in 1870, when the court confronted a particularly critical case and the justices agreed that Justice Robert C. Grier was no longer mentally capable of performing his judicial duties, they acted directly. “A committee of the Court” visited Grier and urged him to retire, Hughes recounted, because the justices recognized that Grier was “in a position to cast a deciding vote in an important case when he was not able properly to address himself to it.” Grier followed their advice and resigned.
An identical and confirming example occurred in the 1920s when Justice Joseph McKenna became increasingly erratic and confused. “I don’t know exactly what we are going to do,” Chief Justice William Howard Taft bewailed in exasperation. Once again, however, the court adopted a practice to preserve its institutional integrity. “A partial solution was found November 10, 1924,” the constitutional historian Alpheus T. Mason explained, “when, after a meeting at Taft’s house, it was agreed not to decide cases in which McKenna’s vote was crucial.”
In the difficult situations that Grier and McKenna presented, the court decided not to allow an effectively disqualified member to cast a deciding vote. The current court could and should follow the same practice and find ways to negate the votes of Thomas and Alito in Trump-related cases. It would be an institutional tragedy if the justices allowed the votes of one or both of those two tainted justices to determine the result of either of the decisive Trump-related cases that are currently before the court, one involving presidential immunity or the other involving the scope of the obstruction statute.
Such an unfortunate institutional embarrassment has already occurred in another of the Trump coup cases that the Supreme Court decided earlier this year. In Trump v. Anderson the court decided unanimously that states could not disqualify Trump from their ballots under Section 3 of the Fourteenth Amendment, but it allowed a bare majority — made possible only by the votes of Thomas and Alito — to go beyond the facts of the case and effectively scuttle Section 3 entirely. No person could be excluded from the ballot under that provision, five justices opined, without congressional legislation authorizing the action. Although manifestly dubious, that assertion could be weighty if not almost conclusive in future cases. If the justices had applied the Grier-McKenna rule, they would not have allowed Thomas and Alito to create a bare majority proclaiming such a sweeping, controversial and highly suspicious dictum.
While disqualification for appearances of impropriety may be different from disqualification for mental incompetence, both situations present identical challenges to the court’s institutional integrity. It is one thing to have a justice deciding a case when in alleged mental decline unknown to the public, but it is far worse for the court, its reputation and the public to have justices deciding cases when marred by ethical improprieties fully proven and well known to all.
Edward A. Purcell, Jr., is the Joseph Solomon distinguished professor at New York Law School and an author whose latest book is “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon.”