Left: Justice Samuel Alito testifies before the House Appropriations Committee on Capitol Hill in Washington, March 7, 2019. (AP Photo/Susan Walsh, File) Right: Justice Clarence Thomas at the Supreme Court building in Washington, Friday, Oct. 7, 2022. (AP Photo/J. Scott Applewhite)

Clarence Thomas broke the law. Samuel Alito probably did. And the Justice Department can do something about it. Alito is making unsupported (and unsupportable) assertions about the Court’s immunity from oversight. In his latest Wall Street Journal interview, he all but taunts Congress to come after him.  

Let’s examine what’s at issue with the myriad gifts Thomas received from conservative billionaire Harlan Crow and Alito from hedge fund mogul Peter Singer, such as an Alaskan fishing trip. The federal recusal statute mandates the disqualification of a judge—including a Supreme Court justice—in two ways pertinent to Thomas and Alito. Generally, it says that a judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” 

It also requires recusal when “he or his spouse” is “known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” The “interest” need not be financial, for the statute elsewhere refers specifically to “financial interests.”  

Thomas has violated this statute for decades. He participated in Bush v Gore, when his wife, Ginni, worked for an organization that screened resumes for the George W. Bush transition team. A decade later, Ginni’s conservative advocacy group, Liberty Central, called the Affordable Care Act a “disaster,” but that didn’t stop Thomas from participating in the legal challenges. Most recently and notoriously—Thomas was the sole dissenter in the Court’s refusal to block the release of documents related to January 6, even though Ginni Thomas was in the thick of trying to overturn the 2020 election, sitting on the advisory board of a group that sent insurrectionists to Washington D.C. for “Stop the Steal” protests. She was texting White House officials, to boot, to buck them up to fight Biden being declared the winner. Despite his wife’s deep involvement, Justice Thomas saw no reason to recuse himself.  

Alito’s violation is more ambiguous but highly plausible. He participated in Argentina v. NML Capital even when one of the litigants, Singer, had taken him on an all-expenses-paid fishing trip to Alaska (including a free trip on Singer’s private jet). In his Wall Street Journal op-ed defending his participation (in which he asserted bizarrely that the free plane ride didn’t count because the seat otherwise would have gone empty, a classic non sequitur), Alito claimed that no one could reasonably think that his impartiality might be questioned. However, many nonpartisan observers questioned it, and a jury might as well. 

So why doesn’t the Justice Department prosecute? It isn’t because of Merrick Garland’s alleged cowardice; it isn’t just because it would be a clash of branches of the government that no administration would want to join. The reason is more straightforward: it can’t. 

The federal recusal law isn’t a criminal statute. It contains no penalties of any kind. What, then, is to be done? We can find the answer in a standard but seemingly strange corner of federal civil procedure: the declaratory judgment.  

Declaratory judgments became part of federal law in 1934. They allow litigants to get a court to set forth the rights of the parties. They are most commonly used in patent litigation, where someone sues a patent holder seeking a declaration that what they are about to do does not infringe on the holder’s patent. Insurance companies seeking to deny claims often sue for a declaratory judgment that their policies do not cover such claims. As the name suggests, declaratory judgments declare the law but carry no other sanctions. Thomas and Alito would face no penalty from a Justice Department civil lawsuit (no one else would have standing or incentive to sue).  

So then, why do it? It would represent a non-partisan assessment that holders of the public trust violated the law. If Thomas and Alito were found to break the law, it would illuminate the behavior of the court’s two most reliably conservative justices and clarify for the voters whether they should accord legitimacy to the high court. It would not end the court’s legitimacy, but it would be an eye-opener. Such an outcome represents the best use of the recusal statute because the lack of legal penalties is the point. This is a live legal issue because Thomas and Alito argue that their actions do not violate the statute and will presumably continue unless they are told to stop. 

Would a lower court judge find two Supreme Court justices broke the law? The good news is that they might not have to. The law is unclear, but there is a good chance that a jury, not a judge, would make such a determination. The judge would instruct the jury on the law, and 12 citizens would determine whether it was broken. 

Once again, this makes sense under the recusal statute, raising whether a judge’s impartiality might “reasonably” be questioned. In most civil litigation and negligence claims, the question is whether the defendant violated the standard of care that a “reasonable person” would have. Juries are well situated to determine what a reasonable person would do because they represent a cross-section of community sentiment. Likewise, jurors are ideally suited to determine whether a reasonable person would question the impartiality of a justice who ruled on a case in which one party was a billionaire friend who took him on a luxury vacation. 

Pursuing a declaratory judgment may seem rash, but the Court practically demands it. Chief Justice John Roberts, breaking with the practice of distinguished predecessors such as Charles Evans Hughes (who, as chief justice, appeared before Congress regarding Franklin Roosevelt’s plan to expand the Supreme Court), simply refused to appear before the Senate Judiciary Committee even to discuss Supreme Court ethics. Roberts’ position is to reject Congressional oversight. Roberts is not alone: Alito claimed the other day that Congress cannot regulate the Court at all outside impeachment and removal—against the plain and precise text of the Constitution, which explicitly says that the Supreme Court shall operate “under such Regulations as the Congress shall make.” 

If Congress cannot hold the Court accountable, and the Justice Department cannot hold it accountable, who is left? If the answer is “no one,” we admit that the Supreme Court can simply ignore the law. That is far more extreme than a declaratory judgment. 

Rudyard Kipling remarked that the demand for power without responsibility has been “the prerogative of the harlot throughout the ages.” Supreme Court critics argue it has prostituted itself enough during the Roberts era. A declaratory judgment is one way to restore some semblance of modesty. 

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Jonathan Zasloff is Professor of Law at the UCLA School of Law.