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When the Supreme Court said Friday that it’s taking up Donald Trump’s Colorado ballot appeal, there was no indication that Justice Clarence Thomas is recusing himself from the Jan. 6-related case. If that’s so, then the justice should at least explain his decision.
In fact, there’s a recent model for providing such an explanation. Thomas’ fellow GOP appointee Samuel Alito issued a statement in September that made his case for staying on an important tax appeal this term, Moore v. United States, despite the lawyer who brought the case to the high court having participated in cozy interviews with Alito in The Wall Street Journal’s opinion pages while he pressed the appeal.
To be sure, as I wrote at the time, Alito’s statement wasn’t a model when it comes to convincing, logical argument. But it had the benefit of being an attempt from the justice to justify himself, even if it missed the mark.
The need for Thomas to issue his own statement is all the more pressing because he actually recused himself from a Jan. 6-related case at the beginning of this term in October, when the high court declined to take up an appeal from former Thomas clerk John Eastman, the MAGA lawyer who’s charged in the Georgia election subversion case and is an unindicted alleged co-conspirator in the federal election interference case.
House Democrats have called for Thomas’ recusal in the pivotal Trump ballot case that’s set for argument next month, arguing that the justice’s impartiality “is reasonably questioned by substantial numbers of fair-minded members of the public” who believe that his wife Virginia “Ginni” Thomas’ “substantial involvement in the events leading up to the January 6 insurrection, and the financial incentive it presents for your household if President Trump is re-elected, are disqualifying.”
Thomas didn’t explain his Eastman recusal in October, so we can only speculate about his thinking then. The failure to provide that precedent, so to speak, makes it more difficult to judge the Eastman recusal against the apparent nonrecusal now.
Crucially, it’s not too late for Thomas to issue such a statement. Alito did so after the court granted review in the Moore case. But with the Trump eligibility case on a compressed timeline, Thomas would need to act quickly. At any rate, he can attempt to clear up confusion, even if unsatisfactorily, by making his case in his own words.
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