No Excuse, He Must Recuse
Supreme Court Justice Clarence Thomas must recuse himself from cases involving the 2020 presidential election because of his wife’s involvement in overturning the election results.
It does not take a legal scholar to appreciate the obvious implication of the just-revealed texts of Virginia (Ginni) Thomas regarding the 2020 presidential election: Her husband, Supreme Court Justice Clarence Thomas, must recuse himself from any cases relating to the election and its aftermath. As one law professor told The New York Times, this is “an easy case.”
Easy because Ginni Thomas was not just commenting on the events of late 2020 and early 2021. She was a participant, texting back and forth with former White House Chief of Staff Mark Meadows about strategy to overturn the electoral results, promoting off-the-wall conspiracy theories about the election and subsequent events, and haranguing Meadows and others never to concede. Her activism makes it impossible for Justice Thomas to avoid, at the very least, the appearance of a conflict of interest in any cases involving the election and the January 6 insurrection. Democratic Senator Ron Wyden of Oregon minced no words, saying in a statement, ”At a bare minimum, Justice Thomas needs to recuse himself from any case related to the January 6 investigation, and should Donald Trump run again, any case related to the 2024 election.”
In fact, Justice Thomas already has considered several cases on the 2020 election that have come before the Supreme Court. The most important case was decided two months ago, when the high court refused a request from former President Donald Trump that the court block the release of White House records concerning the January 6 riot at the Capitol. In its decision, the court rejected Trump’s claim of executive privilege, clearing the way for the House committee investigating the insurrection to receive documents. It is not known at this writing whether any of the items in this case involved Ginni Thomas. The court’s ruling was 8-1. Clarence Thomas was the lone dissenter.
The recently released messages between Meadows and Ginni Thomas were not part of that case. Those messages were among the thousands of documents Meadows turned over to the January 6 committee before he bowed to Trump’s claims of executive privilege and ceased cooperating with the committee.
Only the Thomases know how many details they share about their professional lives and their political views. It is conceivable, though highly unlikely, that they rarely, if ever, discuss cases before the Supreme Court or Ginni’s political activism. Even if that so, it is irrelevant. What is relevant is that Justice Thomas can no longer avoid the suspicion that his opinions on cases pertaining to issues of importance to his wife are influenced by her ideas and activism.
Ginni Thomas insists that she and her husband operate in “separate professional lanes.” She recently told The Washington Free Beacon, a conservative publication, “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” At the same time, the Thomases have emphasized that there is little distance between them, and Justice Thomas has referred in the past to the couple’s shared political philosophy. The issue Ginni Thomas’ activism raises does not, however, revolve around a shared conservative political philosophy. Rather, the issue is that Ginni Thomas is a political activist, involved in political issues that have, and could in the future, come before the Supreme Court.
There have been at least two comprehensive and detailed analyses of the political views and activity of Ginni Thomas in recent months. In January, The New Yorker published Jane Mayer’s article, “Is Ginni Thomas a Threat to the Supreme Court?” Last month, a lengthy piece in The New York Times Magazine probed “The Long Crusade of Clarence and Ginni Thomas.” Some of Ginni Thomas’ political activity has long been problematic as she has been involved in issues that have come before the high court. Members of the Supreme Court are not bound by the code of conduct that covers all other federal judges. The code requires a judge’s recusal in any case that might cause the public to question the judge’s impartiality. As one legal ethicist told Mayer, “It’s an appearance test. It doesn’t require an actual conflict. The reason we use an appearance test is because we say the appearance of justice is as important as the fact of justice itself.”
Clarence Thomas has never recused himself in any case that has come before him, no matter how involved his wife may have been in the issue. He has not been obligated to do so since Supreme Court justices are granted great leeway in deciding when they may have a conflict of interest. But, the cases — real and potential — regarding the previous election raise the issue to a higher level. Justice Thomas cannot justify hearing the January 6 case in which he dissented by claiming he was unaware of his wife’s interest in the outcome. The revelations in the Meadows-Thomas text messages constitute “a game changer,” in the words of Stephen Gillers, a judicial ethicist. Gillers told The New Yorker that he was willing to overlook much of “Ginni’s political activism” in the past, but the texts demonstrate her involvement in attempts to overturn the election results. “That’s enough,” Gillers concludes, “to require her husband to abstain from participation in any case in which her actions might be further revealed.”
Even if we are to take the Thomases at their word and grant that they do not discuss political issues, that claim no longer suffices, especially following the reported decision Monday night of the January 6 committee to seek an interview with Ginni Thomas. The Meadows-Thomas texts reveal Ginni Thomas’ involvement in matters that have been and may continue to come before the bench on which Clarence Thomas sits. Certainly, at this point, he cannot claim ignorance of her political activities. Justice Thomas is obligated to inquire about his wife’s activism. He cannot pretend ignorance. As one legal scholar says, “Conscious avoidance of knowledge is knowledge.”
The need for Justice Thomas to recuse himself from any case involving the 2020 election or subsequent events is obvious. He has no excuses. He must recuse.
Posted March 29, 2020