Since news broke that Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, sent dozens of text messages to then-White House Chief of Staff Mark Meadows promoting efforts to overturn the 2020 election, Republicans have pooh-poohed calls for Justice Thomas to recuse himself from cases related to the election and its aftermath.
“He’s a jurist who has a lot of integrity,” Sen. Rob Portman (R-Ohio) said Sunday on NBC’s “Meet the Press.” “He’s going to make that decision and he has the right to do it.” Over on Fox News, Sen. Rick Scott (R-Fla.) argued, “I’ve watched Clarence Thomas for years and I’ve always seen him do the right thing.”
We shouldn’t have to guess whether Thomas will “do the right thing.” For far too long already, the justice and his wife have been allowed to play fast and loose with ethical standards.
Let’s be clear: Ginni Thomas’s texts themselves aren’t the issue. Yes, her argument that “Biden and the Left is attempting the greatest Heist of our History” is deluded. Biden won the 2020 election. But she has a right to her views, same as anyone else.
The problem lies in a late November message to Meadows in which Thomas refers to a reassuring conversation with her “best friend.” It’s hard not to read that as a reference to her husband — who once described their partnership as “equally yoked.”
First, as even Portman admitted, “if a case comes before [Thomas] that’s exactly on point, … that might be an issue where he would think about” recusal. Of course, such a case already has come before the court: In January, Thomas was the lone dissenter when the high court rejected former president Donald Trump’s efforts to block the release of administration records related to Jan. 6. Did Thomas dissent knowing — or suspecting — that his wife’s text messages might be among those records?
Second, what, if any, other 2020 election cases did the Thomases discuss, and what was the extent of Ginni Thomas’s lobbying of the Trump administration? The Post’s Bob Woodward and former Post reporter Robert Costa, now of CBS News, have said that the Meadows-Thomas messages recently revealed “may be just a portion of the pair’s total exchanges.”
This isn’t the first time ethical boundaries have been questioned when it comes to the Thomases. As the New Yorker’s Jane Mayer reported in January, Ginni Thomas received $200,000 in 2017 and 2018 from a group asking the high court to uphold Trump’s “Muslim travel ban,” which Justice Thomas voted to do in June 2018. In 2011, the justice amended his financial declarations after previously failing to disclose $680,000 his wife was paid by the Heritage Foundation several years before. And, Mayer writes, Ginni Thomas “has held leadership positions at conservative pressure groups that have either been involved in cases before the Court or have had members engaged in such cases.”
Part of the problem is that the Supreme Court is composed of the only nine judges in the country who are not subject to a code of ethical conduct. The justices decide for themselves whether to recuse. Back in 2004, Justice Antonin Scalia defended his refusal to recuse himself from a case involving his friend Richard B. Cheney, then the vice president, by citing this unintentionally damning rationale: “A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” Some of the most successful Supreme Court litigants either worked for or socialize with the justices, Reuters reported in 2014. Three justices own individual stocks in 40 companies, National Law Journal reported last year, “many of which frequently appear before the court.” (The justices have usually, though not always, recused themselves from cases involving those companies.)
In this atmosphere, it’s easy to see how the Thomases might feel entitled to do as they like. When Ginni Thomas’s political work has previously prompted calls for Justice Thomas’s recusal, some arguments in defense of the pair have missed the point: A justice’s wife should be able to have her own career, some said — a convenient argument in a city with plenty of power couples, and one that sidesteps the fact that the justice, not his spouse, is the one who should step back to avoid conflicts. Others have argued against recusal due to the lack of replacement justices. Not only is that an excellent argument for expanding the court, but also the court has survived just fine when a justice has recused, such as when Elena Kagan sat out dozens of cases she had previously worked on as solicitor general.
Now, there are multiple instances where the publicly available information suggests legitimate questions about whether Justice Thomas crossed major ethical lines. Only a thorough investigation and complete overhaul of ethics rules for Supreme Court justices would reverse this dispiriting trend. But when waiting for reform at the nation’s highest court, don’t hold your breath.