The most recent attack on Justice Thomas and his wife, Ginni, has no more validity than the many similar attacks they have endured for decades. Leftist media and many Democrats refuse to apply to the Thomases the well-established standards applicable to all other married couples where one spouse is a judge. The professed outrage over text messages between Ginni Thomas and the Trump White House is just another example of relentless and spurious efforts to limit or discredit Justice Thomas’s service on the Supreme Court. As usual, it relies on hyperbole and misdirection rather than substance.
Disclosure of messages between Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Donald Trump’s one-time chief of staff, generated a media frenzy that rivaled coverage of the Ukraine war. In the texts, which were exchanged shortly after the November 2020 election, Ms. Thomas urged Meadows to take aggressive action to challenge Trump’s defeat. As first reported by the Washington Post, the texts were voluntarily provided by Meadows to the House January 6 Committee and apparently leaked by the Committee to the Post.
Based on a series of distortions, the critics virtually accuse Ms. Thomas of treason. However, their real target is the Justice. They assert that the texts create a conflict of interest forcing him to recuse himself from participating in a wide range of cases that might come before the Supreme Court and cast doubt on his participation in at least one past case. Failure to accede to their demands, they claim, undermines the “legitimacy” of his service on the Court, and even the Court itself. Some critics call for him to resign or be impeached.
The consensus standard is that viewpoints and advocacy by a judge’s spouse are not imputed to the judge and do not constrain his or her judicial functions
The professed outrage over the texts is the latest installment in the longstanding campaign of leftist media and politicians to undermine Justice Thomas by attributing to him Ms. Thomas’s prominent activities in support of many conservative causes. However, the notion that judges are responsible for and limited by the political viewpoints of their spouses has long been discredited.
Ironically, the leading illustration of the current standard comes from one of the critics’ own: liberal icon Stephen Reinhardt, former judge on the Federal Ninth Circuit Court of Appeals. One of the parties to a lawsuit challenging a California ballot initiative prohibiting same-sex marriage sought Judge Reinhardt’s recusal from the case because his wife, and longtime director of the Southern California ACLU, was a vigorous opponent of the initiative, as was her organization. Judge Reinhardt rejected the motion to recuse under the federal recusal statute (28 U.S.C. §455) and explained his reasoning in a memorandum.
Judge Reinhardt’s memo deserves to be quoted at some length and should be required reading for critics of the Thomases:
“My wife’s views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or female. My position is the same in the specific case of the spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.
“Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 . . . the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage—that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say ‘spouses’ than ‘wives’ . . .). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.”
“Nor can I accept the argument that my wife’s views constitute an ‘interest’ that could warrant my recusal under § 455(b)(5)(iii), as such a reading would require judges to recuse themselves whenever they know of a relative’s strongly held opinions, whether publicly expressed or not.”
He concluded with this key point, which has particular salience in the case of the Thomases:
“It is indeed important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality.”
Recusal is uniquely fraught for Supreme Court justices. Unlike lower courts where another judge can substitute for one who recuses, a recused Justice cannot be replaced. Moreover, given the scope of Ms. Thomas’s political activism, attributing her causes to him would implicate many high-profile cases and potentially have major effects on the Court’s jurisprudence. (No doubt this is exactly what the critics want.)
Judge Reinhardt’s reasoning reflects the standard practice today. There are many examples of judges’ spouses engaging in political advocacy and activities (including holding elective office) or other public interest advocacy as individuals or through organizations such as the ACLU. Absent an obvious conflict of interest such as the spouse having a financial stake in a case before the judge, both spouses can work entirely independently. Indeed, this approach seems to be widely accepted and noncontroversial—unless your name is Thomas. In the latter case, all bets are off.
Ms. Thomas’s text exchanges provide no grounds to depart from the standard practice
Going by current reports, nothing in the Thomas-Meadows texts provides a credible basis to depart from the usual standard. For starters, critics grossly distort the context in which the texts took place by attempting to connect them to the January 6 riot at the Capitol. Contrary to the impression conveyed by many critics, the texts hardly touch on the events of January 6. All but one of them took place well before then, in the early weeks following the election when the White House was formulating litigation strategies to test its stolen election claims. While these claims seemed dubious to many of us from the outset, litigating them was legitimate. The one and only text from January actually condemns the attack on the Capitol. Thus, Senator Klobuchar’s accusation that Ms. Thomas was “advocating for an insurrection” and Speaker Pelosi’s description of her as “an admitted and proud contributor to a coup of our country” are patently false. In fact, there is no evidence that Ms. Thomas had any involvement whatever in the riot.
The critics also grasp at straws to embellish Ms. Thomas’s role regarding the texts. One cited ethics lawyer, Stephen Gillers, acknowledged that a justice and spouse can pursue their interests in autonomous spheres, and therefore, he could “tolerate a great deal of Ginni’s political activism.” However, Gillers asserted that she “crossed a line” here. How? According to Gillers, by encouraging legal challenges to the election and making suggestions she became “part of the team seeking to overturn the election.” This is a huge stretch. There is no indication that she had any official status or authority, performed tasks, participated in strategy sessions, or provided any input beyond her often colorful exhortations. In short, she was not a team member in any conceivable sense. As one pundit put it, this would be like saying that an avid sports fan who yells encouragement to her team from the stands and shouts out plays for them to run thereby becomes part of the team.
Other ethics experts nebulously claim Ms. Thomas has an “interest that could be substantially affected” by election-related litigation for purposes of 28 U.S.C. § 455 requiring her husband’s recusal. However, as the Reinhardt example shows, the statute’s reference to an “interest” in a case surely means something more tangible than a personal viewpoint, no matter how strongly held or expressed. The experts do not specify what it might be in the case of Ms. Thomas.
Many critics emphasize that Justice Thomas was the sole dissenter when the Supreme Court refused to prevent the National Archives from providing documents, including texts to or from Meadows, to the January 6 Committee. However, the texts involving Ms. Thomas were not part of that case; Meadows had turned them over earlier. In any event, there is no indication that Justice Thomas even knew of the texts between Meadows and his wife.
Finally, many of the critics base their case on pure conjecture. They seize on a mention Ms. Thomas made in one text to a conversation she had with her “best friend” and speculate from this that she had some sort of substantive discussion with Justice Thomas about the election claims. They also speculate that there may be more texts. If so, their significance, if any, could be evaluated—hopefully more honestly than the existing batch.
Don’t expect this controversy to go away
While the critics cannot squeeze a plausible conflict of interest case from the facts reported so far, they are sure to keep fishing. Reportedly, the January 6 Committee is under pressure to call Ms. Thomas as a witness. Since there is not a scintilla of evidence that she had any involvement in the events of January 6 (other than appearing briefly as a spectator at Trump’s rally), this would be nothing but a political stunt and a distraction from the Committee’s real work.
(Personal disclosure: I know Ginni Thomas, having worked with her years ago on nonpolitical government management issues when she was a congressional staffer. While I don’t share her views on the 2020 election or her enthusiasm for Trump, I consider her a friend. I’m also confident that, whatever one thinks of her politics, she is more genuine than most of her critics.)