U.S. Supreme Court

Post-election texts by wife of Justice Thomas raise ethics issues, experts say

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Virginia “Ginni” Thomas speaks at the 2017 Conservative Political Action Conference in National Harbor, Maryland. Photo by Gage Skidmore, CC-BY-SA-2.0, via Wikimedia Commons.

Ethics experts say U.S. Supreme Court Justice Clarence Thomas should recuse himself in some cases following revelations that his wife urged the former White House chief of staff to contest the 2020 presidential election loss for then-President Donald Trump.

A federal law requires federal judges and justices to recuse themselves in any proceedings in which their “impartiality might reasonably be questioned,” report the Washington Post, the New York Times, Bloomberg Law, CNN and Law.com.

But individual justices make their own decisions on recusal, and there could be questions about the constitutionality of the law, according to the New York Times. And Thomas has already participated in the Supreme Court’s order allowing some of Trump’s records to be turned over to the House committee investigating the Jan. 6. 2021, U.S. Capitol riot. Thomas dissented from the order.

The Washington Post and CBS News broke the news about the texts sent to then-White House Chief of Staff Mark Meadows by Thomas’ wife, Virginia “Ginni” Thomas. The Facebook page for Ginni Thomas was taken down after she promoted Trump’s Jan. 6 rally.

In a Nov. 10, 2020, text, Ginni Thomas told Meadows that “Biden and the left is attempting the greatest heist of our history,” and Meadows should “help this great president stand firm.” Ginni Thomas’ texts were turned over by Meadows to the House committee investigating the Capitol riot.

The committee will reportedly seek an interview with Ginni Thomas, according to a source who spoke with the Washington Post. CNN is more equivocal; it reports that the committee “is likely to reach out to Thomas.”

Here is what ethics experts had to say about Thomas and his recusal:

• James Sample, a professor at the Hofstra University Maurice A. Deane School of Law: Thomas’ participation in the Jan. 6 records case “is not your run-of-the-mill close call. … This is as far beyond the line as any Supreme Court recusal question I have seen, and I’ve studied Supreme Court recusal all the way back to Marbury v. Madison.” (Law.com)

• Louis Virello, a professor at the Stetson University College of Law, who wrote Disqualifying the High Court: Supreme Court Recusal and the Constitution: “There’s no doubt that Justice Thomas participating in a case about materials relating to the Jan. 6 insurrection appears inappropriate in light of his wife’s involvement. But I would caution against reading the statute that broadly for the court all the time. … It’s important with Supreme Court recusal that the justices balance their ethical obligations with the institutional obligation to decide cases.” (Law.com)

• Stephen Gillers, an ethics expert and a professor at the New York University School of Law: “Justice Thomas should have recused himself from any case that concerned, and any that hereafter concerns, the validity of the election, the work of the Jan. 6 commission or the Capitol invasion.” Thomas can’t claim ignorance about his wife’s work. “It was his job to ensure the public would not question his impartiality” in cases involving the 2020 election and Congress’ investigation of of the Capitol attack. (Bloomberg Law and the Washington Post)

• Richard Painter, a professor at the University of Minnesota Law School and a former White House ethics lawyer: Thomas should recuse “from Jan. 6 cases, because [his wife] was clearly involved … That doesn’t mean she committed any crimes, but she was close enough to the events of Jan. 6 that he should recuse.” (Bloomberg Law)

• Steven Lubet, an ethics expert and a professor at the Northwestern University Pritzker School of Law: “The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election. … If any future cases involve any communication from Ginni Thomas as evidence or involve her as a witness, all of those things should require immediate recusal from Justice Thomas, and I think it’s a fairly simple question. … It becomes more complicated when you step back a level.” A case involving a Jan. 6 prosecution, for example, wouldn’t require recusal. (The Washington Post)

• Amanda Frost, a judicial ethics expert and a professor at the American University Washington College of Law: “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.’ … But she wasn’t doing just that. … She was strategizing. She was promoting. She was haranguing.” The Supreme Court should adopt a system to review justices’ recusal decisions and should require justices to explain why they recused. (The New York Times, the Washington Post)

Among those defending Thomas is Carrie Severino, a former law clerk for Thomas and president of the Judicial Crisis Network, a conservative group.

“The left’s partisan crusade to force Justice Thomas off of cases is not based on real recusal standards but on politics,” Severino told Bloomberg Law in an emailed statement. “Liberals don’t like the fact that he is Black and won’t follow their agenda, so they invent flimsy controversies to discredit him for thinking for himself.”

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