Thomas granted a request to stay the subpoena on Monday as Graham fights the order to give testimony as part of a Georgia grand jury investigation into attempts to overturn the 2020 presidential election.
A panel of the U.S. Court of Appeals for the 11th Circuit denied an earlier request from Graham to block the subpoena on Thursday, and Thomas’ order is only temporary. The Supreme Court will have to review Graham’s request and could reject it.
Nonetheless, Thomas was subjected to strong criticism and even calls for impeachment after he took the decision to grant the stay without referring the matter to the other justices.
Some critics also pointed to the justice’s wife, conservative activist Virginia “Ginni” Thomas, who testified in September before the House select committee investigating the January 6, 2021, Capitol riot. She reportedly maintained in her testimony that the 2020 election was stolen from former President Donald Trump.
“Another day, another conflict of interest for Justice Thomas revealed. Add this to the laundry list of impeachable offenses he has committed. He has no business being on the Supreme Court, and no shame,” tweeted Democratic Representative Jan Schakowsky.
While the U.S. Constitution gives Congress the power to impeach a Supreme Court justice, no member of the Court has ever been successfully impeached. That appears very unlikely in the case of Thomas, who is now the Court’s longest-serving member.
Impeaching a Justice
The House of Representatives has the authority to impeach a federal judge by a simple majority vote under Article I of the Constitution. However, a justice cannot be removed from office without a trial in the Senate—and then only if two-thirds of senators vote to convict, according to the Brennan Center for Justice.
“There is no doubt in my mind that Justice Thomas should have recused himself from the case,” Paul Collins, a legal studies and political science professor at the University of Massachusetts Amherst, told Newsweek.
“But I’m also not surprised that he opted not to recuse,” Collins said. “By participating as the lone decision maker in a dispute that involves potentially unlawful activity that his spouse actively participated in, Justice Thomas brought further harm on the Court, which is suffering its lowest public approval in modern history.”
“Unfortunately for the country, there is very little that can be done about this since Supreme Court justices are not held to an ethical code of conduct and because the chances of Thomas being impeached are slim to none,” he went on.
“So, while there may be an investigation in Congress, I do not believe any serious action will be taken against Thomas, which will add to the impression that the justices are above the law,” Collins said.
The Next Steps
Thomas’ decision to temporarily block the subpoena may not be as big an issue as some of his critics have suggested and the ultimate outcome of Graham’s challenge to the subpoena could be different.
“The stay Thomas has granted is temporary, pending further action by him or the Court. For now, it is not a big deal,” Gregory Caldeira, a professor of law at the Ohio State University, told Newsweek.
“The next move, by him or the Court, or the parties will be important and indicate which way things are going,” he said.
“In other words, stay tuned for the next steps, which is when we will have some idea of [where] this is going and whether there will be quick action on Graham’s request,” Caldeira said.
Steve Vladeck, Charles Alan Wright chair in federal courts at the University of Texas Law School, made a similar point on Twitter on Monday, writing: “To be clear, Justice Thomas issued an ‘administrative stay,’ which blocks the Eleventh Circuit ruling only temporarily while the full Court decides whether to block it pending appeal.”
“Such a ruling is not predictive of how the full Court (or even Thomas) will vote on the stay,” Vladeck said.
Responding to Vladeck, Harvard Law professor Laurence Tribe wrote: “Let’s not minimize it! It was plainly unlawful under 28 USC 455 for Justice Thomas to take any action at all other than recusing and passing the baton to another justice.”
“Even granting a brief ‘administrative stay’ showed his contempt for the law he is sworn to uphold. Period,” Tribe said.
Meanwhile, the debate about Thomas’ actions is likely to continue and the next steps in Graham’s case will be closely watched.
