A guest post by Lawrence Friedman
Attention turned this spring to U.S. Supreme Court Justice Clarence Thomas following revelations of both the close relationship his wife, Ginni Thomas, a conservative activist, enjoyed with operatives involved in perpetuating the lie that Donald Trump won the last presidential election; and her express alignment with interest groups appearing before the Court. For his part, Justice Thomas has given no indication that he has or will recuse himself in cases in which his wife played some part.
But Justice Thomas is not the only jurist involved of late in questionable decisions regarding the limits of the judicial role. Back in 2018, as discussed here, Massachusetts state district court judge Shelley Joseph allegedly interfered with the enforcement of federal immigration law. The government maintains that, after presiding over the arraignment of an undocumented immigrant for whom Immigration and Customs Enforcement (ICE) had issued a detainer and warrant for removal, Judge Joseph helped the individual to avoid the ICE official waiting for him to exit the courthouse. The government charged her with conspiring to obstruct justice and obstructing a federal proceeding. In February, the U.S. Court of Appeals for the First Circuit rejected her request for interlocutory relief while her prosecution continues in the U.S. District Court for the District of Massachusetts.
More recently, there is the story of New York Court of Appeals Judge Jenny Rivera, under investigation by the state’s Commission on Judicial Conduct for refusing to adhere to the court system’s COVID-19 vaccination mandate. As the New York Times reported in March, Judge Rivera “has participated remotely in the court’s activities since the fall, when the state court system’s vaccination mandate took effect and unvaccinated employees were barred from court facilities.” The other six justices of the state’s highest court have continued to confer and hold oral arguments in person. It seems clear that Judge Rivera did not claim she was exempt from the mandate on either religious or medical grounds.
If proved, the allegations against Judge Joseph would reveal a judge willing to defy a federal law that she apparently saw as unjust. In her defense, Joseph has argued that she enjoys immunity for actions taken in her judicial capacity, and that her prosecution is, as the First Circuit summarized, “barred by principles of federalism and due process and the Tenth Amendment precedent holding that the federal government may not ‘commandeer’ state officials to execute federal policies.” These are not frivolous arguments. Still, given the facts alleged, one reasonably might be skeptical that, in the midst of assisting an undocumented person to thwart federal detention, principles of federalism were foremost in the judge’s mind.
While Judge Rivera violated no federal, state, or local law in defying the vaccination mandate, she nonetheless declined to abide by a rule applicable to her and her fellow justices, promulgated to prevent the spread of a highly contagious disease and, relatedly, keep the state’s court’s open for business during a global pandemic. Rivera has made no public statement about her choice, but at least one defender contends that she did not engage in misconduct and “[s]he has her reasons” for refusing vaccination.
There are many differences between the stories of Judge Joseph and Judge Rivera, but they have at least this point in common: each apparently relied on her own sense of right and wrong in acting contrary to prevailing rules governing their professional conduct. Regardless of the legal implications of their actions, it is difficult to see how such an approach to the judicial role could not be problematic. The underlying fairness of particular rules should be contested and debated in the public square, in legislative halls, before administrative agencies, and by attorneys in open court. When judges take such concerns into their own hands, they effectively undermine any claim they may have to objectivity—that is, to the absence of bias that serves as a basis for the legitimacy of judicial rulings in our legal system. Public trust in the judiciary is likely to suffer when judges are seen as relying upon personal metrics in deciding which rules they will respect or enforce.
And then there are the practical considerations. In Massachusetts, Judge Joseph abetted the escape of an individual whom federal authorities concluded had violated the law. ICE apprehended the person about two weeks later, without further incident, but he was at large for a not-insignificant period of time. In New York, Judge Rivera’s decision denied the attorneys arguing before the high court the ability to engage with her in person. She also denied them—and the parties they represented—the ability to engage in person with her colleagues about their cases. Regardless of the benefits of remote participation, there is some evidence that its utility in deliberative environments is diminished. Tanja Pritzlaff-Scheele and Frank Nullmeier have concluded, for example, that “[c]ertain features inherent in face-to-face, embodied communicative practices, performed under conditions of physical co-presence, seem to promote the production of trust and reciprocity within actor constellations.”
In Washington, D.C., meanwhile, it remains to be seen whether Justice Thomas will recuse himself from matters in which his wife was closely involved. Of course, unlike the situations of Judges Joseph and Rivera, should Justice Thomas continue to hear such cases he will not be in violation of any formal rule. For when it comes to conflicts of interest suggesting recusal, the justices of the Supreme Court answer only to the dictates of their own conscience—a problem, when compared to the actions of Judges Joseph and Rivera, that is different not just in degree, but in kind.