BREAKING: Justice Thomas Does Something Ethical

Let’s all give a hearty round of applause for Justice Clarence Thomas, who finally managed to spot an ethical conflict in the wild and refrain from rolling around in it with abandon.

No, we’re not talking about a luxury vacation, or a speaking engagement, or selling his mother’s house to a benefactor, or accepting tuition payments for his child. He’s still working on those.

But when it comes to one of his wife’s co-conspirators in a plot to overturn the election, Justice Thomas draws the line — at least when his very minor act of deference to judicial ethics will likely have no practical effect whatsoever.

This morning the Supreme Court denied certiorari for a petition filed by John Eastman, Justice Thomas’s former law clerk, who remains tight with the judge’s wife Ginni Thomas.

“The petition for a writ of certiorari is denied. Justice Thomas took no part in the consideration or decision of this petition,” this morning’s orders list read. But even without the senior justice’s participation, the Court wanted nothing to do with this tire fire of a case.

Eastman’s pratfalls both into and out of this case were the stuff of legend. On the front end, he used his work email at Chapman University to plot a coup, so the January 6 Select Committee simply subpoenaed to the school for his communications. Eastman sued in the Central District of California to block the school’s cooperation, but on October 19, 2022, Judge David Carter ruled that most of the messages were not work product, and some were ineligible for attorney-client privilege under the crime-fraud exception.

On October 28, a mere two hours before the disclosure deadline, Eastman docketed an emergency motion at the Ninth Circuit to stay the order of production pending appeal. At the same time, he emailed a Dropbox link to the Committee asking it to prettyplease not click on it. The Committee members declined to play along with the appellant’s fantasy that the Ninth Circuit had granted him a stay and promptly downloaded the emails.

Eastman, a Constitutional law professor who is apparently unfamiliar with the Speech or Debate Clause, then asked the Ninth Circuit to make Congress disgorge the information, or at least not disclose it. The Committee’s response included Eastman’s email message with the Dropbox link — which his lawyers had not disabled. Reporters immediately clicked on it and published the contents, effectively mooting the case.

But instead of taking the “L,” Eastman tried to persuade the Ninth Circuit to vacate the lower court’s order, arguing that, as the party who was “not at fault” for mooting the case, he was entitled to vacatur under Munsingwear. This provoked substantial judicial eye-rolling at the Ninth Circuit, where exactly no judge voted in favor of his petition for en banc review. And while the Supreme Court vote was not revealed, Eastman didn’t even manage to get the nod from Justices Alito, Gorsuch, Kavanaugh, and Barrett.

Thus ends this embarrassing saga. Although for Eastman, who is facing disbarment proceedings in California and criminal RICO charges in Georgia, the fun is just beginning.

Eastman v. Thompson [SCOTUS Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.