Given that the United States Supreme Court is the highest court in the land, you might think that its justices should display the highest level of professionalism and integrity, regardless of their ideological background. This means recusing yourself when ethics demand it, even though the law does not. It also means not assuring senators of one thing while you’re a nominee, only to do the opposite once you’re confirmed and begin your lifelong tenure.
Apparently, Supreme Court justices who were nominated by Republican presidents don’t give two covfefes about such standards. Justice Clarence Thomas, nominated by President George H.W. Bush, refused to recuse himself from matters relating to the election or insurrection after it was revealed that his wife Ginni texted Mark Meadows claiming the 2020 presidential election was stolen and urged the Trump team to try to overturn the results. Ginni cried that Biden’s win was “the greatest Heist of our History,” yet Thomas stubbornly Krazy-glued himself to the bench.
As the Brookings Institution explained in detail earlier this year, Thomas’s refusal to recuse himself in this instance “may be wrong but it’s not judicial misconduct.” Similarly, when justices act in stark contrast to how they portrayed themselves to senators as nominees, it’s disturbing though it’s also not illegal.
All three Trump-nominated justices recently pulled this stunt with abortion. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett’s linguistic acrobatics included tough talk about precedent coupled with a feigned interest in not overturning Roe v. Wade. It was enough to convince Senator Susan Collins to vote for Gorsuch and Kavanaugh. However, once they did overturn Roe, Collins appeared to lament that it was “completely inconsistent” with what they told her. Although Collins voted against Barrett, Senator Lisa Murkowski was apparently duped, stating at the time that “I don’t see her overturning the decision in Roe v. Wade.”
By contrast, Justice Kentanji Brown Jackson, who was nominated by Democratic President Joe Biden, is taking the lead in upholding standards and bringing integrity to the Supreme Court. This week, the Supreme Court took up the issue of affirmative action in education in a case involving the University of North Carolina and Harvard University. Since Jackson attended Harvard and served on its Board of Overseers for six years, she decided she has a conflict of interest and therefore recused herself with the Harvard part of the case.
Unlike Thomas, Jackson recused herself when the circumstances called for it, even though the law didn’t require it. In addition, Jackson—unlike Gorsuch, Kavanaugh, and Barrett—acted consistently with her assurances as a nominee, having honestly replied “That’s my plan” after Senator Ted Cruz asked whether she would recuse herself in the Harvard matter. Justice Ketanji Brown Jackson is a breath of fresh air.