Thomas ruled on election cases, despite his wife’s ties and texts
WASHINGTON — The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.
It is one thing, experts in legal ethics said Friday, for the spouse of a Supreme Court justice to express political views, even ones shot through with wild conspiracy theories. That may not by itself require the justice’s recusal from cases touching on those views.
But the text messages from Thomas, a longtime conservative activist who goes by Ginni, revealed something quite different and deeply troubling, experts said.
The messages from Thomas to Mark Meadows, President Donald Trump’s chief of staff, sent during and just after the fraught weeks between the 2020 presidential election and the Jan. 6, 2021, attack on the Capitol, demonstrated that she was an active participant in shaping the legal effort to overturn the election.
“I’m not sure how I would have come out if we just had a lot of texts from her saying that ‘this is terrible,’ ” said Amanda Frost, a law professor at American University in Washington.
“But she wasn’t doing just that,” Frost said. “She was strategizing. She was promoting. She was haranguing.”
The texts were among about 9,000 pages of documents that Meadows turned over to the congressional committee investigating the Capitol attack. Democrats immediately seized on the disclosure to draw attention to the conflicts they said were presented by Ginni Thomas’ political activities and to press Justice Thomas to recuse himself from cases concerning the election and its aftermath. Sen. Ron Wyden, D-Ore., said that Justice Thomas’ “conduct on the Supreme Court looks increasingly corrupt” and that he had been “the lone dissent in a case that could have denied the Jan. 6 committee records pertaining to the same plot his wife supported.”
Justice Thomas, Wyden said, “needs to recuse himself from any case related to the Jan. 6 investigation, and should Donald Trump run again, any case related to the 2024 election.”
But Thomas, who was released from the hospital Friday after being treated for the last week for flulike symptoms, has long been a pillar of the conservative establishment. Republicans, even those who have distanced themselves from Trump and the more extreme wing of their party, showed no interest in pressuring him to recuse himself.
Ginni Thomas’ text messages were heated and forceful, urging Meadows to pursue baseless legal challenges. “Biden and the Left is attempting the greatest Heist of our History,” one said.
All federal judges, including Supreme Court justices, are subject to a federal law on recusal.
The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
A more specific provision concerning relatives, including spouses, might also apply to his situation. Judges should not participate, the law says, in proceedings in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”
Stephen Gillers, a law professor at New York University, said the word “interest” was the key.
“By writing to Meadows, who was chief of staff and active in the ‘Stop the Steal’ movement, she joined the team resisting the results of the election,” Gillers said. “She made herself part of the team and so she has an interest in the decisions of the court that could affect Trump’s goal of reversing the results.”
In an interview this month with the Washington Free Beacon, a conservative publication, Ginni Thomas said that she and her husband kept their professional lives separate. “Clarence doesn’t discuss his work with me,” she said, “and I don’t involve him in my work.”
But the recusal law required Justice Thomas to inquire about his wife’s activities, Gillers said.
“He had an obligation to ask her what she’s doing,” he said. “He cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”
In his 2011 annual report on the state of the federal judiciary, Chief Justice John Roberts wrote that “the limits of Congress’ power to require recusal have never been tested.”
But he added that the justices followed the law, in their own way. The Supreme Court has left recusal decisions to the discretion of the justice in question.