It’s the tale of two courts with ethically challenged Supremes adjudicating cases they have no business adjudicating. Obviously compromised justices on the Ohio Supreme Court and the U.S. Supreme Court — with glaring conflicts of interest on issues before the courts that scream for recusal — playact as neutral arbiters of the law they place themselves above.
Ohio Supreme Court Justice Joe Deters and U.S. Supreme Court Justice Clarence Thomas do not belong anywhere near two cases taken up by their respective institutions. Deters should not be judging a case on appeal that he once argued before a lower court and Thomas should not be weighing in on a ballot issue involving an insurrectionist aided and abetted by his wife. Certainly their “impartiality might be reasonably questioned” in those matters and has been to no avail.
In both the state and federal court, Deters and Thomas have simply ignored their clear legal obligation “to not hear or decide matters” whenever reasonable doubt is raised about suspected biases (perceived or real) coloring judgment. In doing so, both justices have made a mockery of the rule of law in their separate courts and further eroded public trust in a judiciary that flaunts its prejudice from the bench.
In Ohio, the state supreme court is hearing a robbery case (State v. Tommy Glover) that could change the way long-term criminal sentences are evaluated in the state. Deters was lead counsel on that case two years ago when he was the Hamilton County Prosecuting Attorney. Under Ohio’s judicial code of conduct, judges are mandated to recuse themselves from cases they’ve previously been involved in as lawyers. Period.
Deters should not be deciding a case he argued as district attorney. Just the appearance of Deters presiding over his former co-counsel’s oral arguments in court last week sparked controversy and raised all sorts of reasonable questions about his impartiality. Yet there he was, sitting for a hearing at the high court on a case that originated from Deters’ office as Hamilton County’s former top prosecutor.
Every justice asked questions except Deters. He had all the answers as the DA who initially represented the state in the appellate court decision being reviewed by him and others on the bench. Deters, by the way, was instrumental in getting his old case up to the state supreme court seven months into his newly appointed term. The associate justice cast the deciding vote to accept review of his appellate defeat and maybe reverse it.
The man has chutzpah, if not integrity. Deters explained away his trashing of legal and ethical standards with a strange, if not legally supported, statement. In a case where his opinion is expressed in his signed legal brief to the First District Court of Appeals in Cincinnati, Deters asserted recusal was unnecessary because he didn’t “express an opinion about it” — appellate brief, notwithstanding. He also maintained he wasn’t “personally or substantially” invested in a case argued by his former office.
Seriously?
Deters said he consulted with Chief Justice Sharon Kennedy about fashioning his own policy of courtroom ethics and everything was kosher — despite his blatant violation of the judicial code to recuse himself from deciding a case in which he served as counsel. It’s not the first time a justice on the panel Kennedy leads has interpreted the legal rules on recusal to fit a narrative, if not the law. Justice Pat DeWine unquestionably violated judicial ethics by sitting in judgment of a (redistricting) case in which his father was a defendant.
How on earth can Ohioans accept the rulings of their state supreme court when they can’t trust its justices to faithfully adhere to the highest ethical standards, to avoid even the perception of prejudice from the bench, to render fair and impartial justice in Ohio? Perceived conflicts of interest as egregious as the one embroiling Deters (judging a case he had a stake in advancing) shakes public confidence in the credibility of the judicial branch so integral to every court process and proceeding.
But mistrust grows when the law does not apply to judges. That is painfully evident on the U.S. Supreme Court where favorable views of the once exalted institution have fallen to historic lows. But ongoing allegations of ethical misconduct by justices who regularly flout the law every other judge must follow doesn’t help. One of the worst offenders on the court is Justice Thomas, beneficiary of billionaires’ largesse, lavish vacations, and luxury RVs.
Like Deters in Ohio, Thomas exhibits extraordinary gall in declining to recuse himself from conflict of interest cases near and dear to his insurrection-supporting wife. Ginni Thomas actively worked to overturn the 2020 election by sending multiple missives to then-White House Chief of Staff Mark Meadows, pushing the fake electors scheme, tapping her husband’s former law clerks to prop up Trump’s coup attempt culminating in the Jan 6 insurrection.
Yet there was Justice Thomas sitting through oral arguments Thursday on a Colorado ballot case before the court involving the very insurrectionist his spouse conspired to help. His appearance was as appalling as Deters, the same intentional and shocking violation of ethical obligations. A travesty in a tale of two courts that allow supreme assault on the rule of law.
This guest commentary was originally published by the Ohio Capital Journal and republished here with permission.
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This article appears in Feb 12-12, 2024.