The early defenses of Justice Clarence Thomas’s decision not to recuse himself from key 2020 election cases have run into an unhappy reality: This wasn’t just a matter of Thomas’s wife being an activist for causes that came up before the Supreme Court; this was Thomas possibly voting in a way that could shield his wife’s activities.
We learned last week that Virginia “Ginni” Thomas had strategized with the White House about overturning the election, and Thomas was the only justice to vote to withhold White House records involved in that effort from the Jan. 6 committee. (The committee is apparently seeking to interview Ginni Thomas.)
But these revelations have been followed by a predictable onslaught of whataboutery. What about other justices who could have recused from major cases in which they had alleged conflicts of interest?
We use that word — “whataboutery” — not in a judgmental or negative way. There are no firm rules for when a Supreme Court justice must recuse themselves, after all; it’s up to the justices themselves. Basically, we assess such situations by looking to the history of how other justices have handled them. And the recent past offers up plenty of recusal controversies.
All of that said, as with much of Ginni Thomas’s activism, this case appears unusual — and to have potentially involved Thomas’s family in a way others haven’t.
As the Thomas recusal debate has grown in recent weeks, a popular comeback has emerged: What about Ruth Bader Ginsburg? It was raised by a Republican lawyer who worked to confirm Thomas — in two separate op-eds — by many social media users and by a writer for The Federalist appearing on Fox News this weekend.
Ginsburg, like Thomas, was among the justices most reluctant to recuse herself. She maintained that posture despite blurring the lines between political activism and the judiciary on multiple occasions.
Many of the Ginsburg recusal questions stemmed from the work of her husband, Martin Ginsburg. He was a well-known tax lawyer who often found himself tied, however directly or indirectly, to cases before the Supreme Court.
In 1997, he sold stocks in eight companies after it was revealed that Justice Ginsburg took part in cases involving the companies. (Justices often — though not always — recuse from cases involving stock holdings.) He also worked at a law firm involved in cases before the court. In 2004, she defended her decision to continue working with the NOW Legal Defense and Education Fund, even after she took its side in a case. She heard cases involving the ACLU despite having been heavily involved with the group before becoming a justice. And most recently, in 2017, Republicans called on her to recuse herself from a case involving President Donald Trump’s travel ban because she had offered unusually blunt criticisms of his candidacy during the 2016 campaign.
Perhaps the other most oft-cited recusal controversy involved Ginsburg’s ideologically opposed friend, Justice Antonin Scalia. In 2004, he fended off calls to recuse himself from a case involving then-Vice President Dick Cheney’s energy policy task force because he had recently gone on a hunting trip with Cheney. In an unusual memo explaining his rationale, Scalia said he had “never hunted with [Cheney] in the same blind or had other opportunity for private conversation” with Cheney.
Justice John Paul Stevens in 2003 considered recusing himself in a landmark case involving the University of Michigan, where one of his former clerks served as the dean of the law school. He said he sought counsel from the other justices, and they agreed he should stay on. He wound up being a key vote for the majority in a 5-4 decision upholding the school’s affirmative action policy.
(Affirmative action policies have repeatedly birthed recusal questions. Current Supreme Court nominee Judge Ketanji Brown Jackson said last week that she would recuse from an upcoming affirmative action case involving Harvard University, given her service on its governing board. Justice Elena Kagan in 2012 recused herself from a case involving the University of Texas’s program, because the Justice Department had filed a brief in the case when she was there.)
In 2011, a significant Obamacare case drew calls from both sides of the political aisle for recusals.
Back then, Republicans called for Kagan to recuse herself because the newly minted justice had served as President Barack Obama’s solicitor general. Kagan said she had been informed that she could be nominated for the Supreme Court and thus played no role in preparing the government’s side of the litigation.
Democrats called for Thomas to recuse himself from the same case, because Ginni Thomas had fought against the law in other contexts.
For a while, today’s recusal debate sounded somewhat familiar: Ginni Thomas had advocated for a cause that was coming before the court, but she wasn’t directly involved in business before the court. Early on, it was about her having signed on to a letter criticizing the Jan. 6 committee. That was still true when we learned earlier this month that she had attended the Jan. 6 “Stop the Steal” rally that preceded the Capitol insurrection.
What changed last week is that we found out she had also strategized with a White House whose records her husband had voted to protect — and on the very same subjects the Jan. 6 committee is investigating. As we wrote last week, that means it’s possible the communications Justice Thomas voted to withhold could involve his wife. It’s possible her communications were wrapped up in those records — though the texts we’ve seen to date were sent to then-White House chief of staff Mark Meadows’s personal phone — and it’s also possible the communications might merely mention her actions.
In the above cases, it’s difficult to find an analog to the current situation. Most involved situations in which the justice might, because of personal or familial ties or because of public comments, meet the federal standard having their “impartiality … reasonably be questioned.” But generally, this has been because of groups or people they intersected with or because of professional affiliations.
About the closest we come to a situation where decisions might personally benefit a justices or their family was Ginsburg’s. That’s if you believe the justice and her husband benefited by the Supreme Court ruling in favor of the view supported by Martin Ginsburg’s firm, or ruling in favor of the NOW Legal Defense and Educational Fund, which proceeded to sponsor a lecture series bearing Ginsburg’s name.
Of course, in the Thomases’ case, we don’t yet know how much — or even if — his vote shielded his wife’s actions, wittingly or unwittingly. But given that his was the only dissenting vote and the Jan. 6 committee got the White House records, we might soon find out.