Seldom in recent memory has the off-the-bench conduct of a Supreme Court Justice or their spouse caused the kind of trouble generated by the recent behavior of Clarence and Virginia (Ginni) Thomas.
They have exposed the naked partisanship that lies just below the surface of today’s Supreme Court. They have lent both tacit and overt support to former President Trump’s election lie. Justice Thomas also has undermined the appearance of collegiality that Justices typically carefully cultivate.
The Justice and his wife have damaged the Court at a time of declining public confidence in this institution.
Let’s start with Ginni Thomas.
She is a longtime conservative political activist. Her partisan political work started long before she married then Judge Thomas in 1987, four years before his nomination to the Supreme Court.
According to an ABC News report, she “first came to Washington, D.C., in the early 1980s as an aide to former Nebraska Republican Rep. Hal Daub…. She went on to work with the U.S. Chamber of Commerce and for the Heritage Foundation,” serving as a liaison between the foundation and the George W. Bush administration.
Ginni Thomas is not the first spouse of a Supreme Court Justice to play an activist role in partisan politics.
To take but one example: almost a century ago Justice Louis Brandeis’s wife Alice continued to champion progressive causes including women’s suffrage, industrial reform, organized labor, the legal rights of children, and the fledgling American Zionist movement after Brandeis was appointed to the Court. In 1924 she was a prominent supporter of Wisconsin Senator Robert LaFollette’s bid for the presidency.
But Ginni Thomas’s partisanship goes well beyond anything done by any previous Supreme Court spouse.
In 2009, she founded Liberty Central, a conservative political advocacy group. The New York Times notes that the group was “dedicated to opposing what she characterizes as the leftist ‘tyranny’ of President Obama and Democrats in Congress.” The Times described her work as “the most partisan role ever for a spouse of a justice on the nation’s highest court.”
Ginni Thomas endorsed Texas Senator Ted Cruz in the 2016 Republican presidential primaries. She hoped to see an experienced, conservative, anti-establishment combatant occupy the Oval Office.
As she said at the time, “I am looking for the kind of person who will be the leader of the free world. Someone who has a North Star; someone who is a principled, experienced conservative. And Ted Cruz has got the scars to show he has tangled with the top Republican leaders and Democrats leaders in town…Rhetoric and promise on the campaign trail are not enough.”
After Cruz was defeated for the Republican nomination Ginni Thomas became an enthusiastic supporter of Donald Trump. And throughout the Trump administration, she played an active role in lobbying for various conservative projects and advising the former president on personnel matters.
CNN reports that “One week after the 2018 midterms, President Donald Trump hosted a private lunch with Supreme Court Justice Clarence Thomas and his wife, conservative activist Virginia ‘Ginni’ Thomas. She used her face time with Trump to cajole him about her floundering efforts to install friends and allies into plum administration positions.”
More unsettling than such partisan work is Ginni Thomas’s role in aiding Trump’s effort to subvert the very constitutional order that her husband has sworn to protect.
News reports indicate that she exchanged at least 29 text messages with former White House chief of staff Mark Meadows, “urging disruption of the November 2020 election results favoring President Joe Biden.”
And, according to The Washington Post, she actively lobbied Arizona legislators “to set aside Joe Biden’s popular-vote victory and choose ‘a clean slate of Electors.’” As the Post puts it, “In sending the emails, Thomas played a role in the extraordinary scheme to keep Trump in office by substituting the will of legislatures for the will of voters.”
This activity raises a serious conflict of interest problem for Justice Thomas in any case involving the 2020 election. An April 2022 Quinnipiac Poll found that “Americans think 52 – 39 percent that Supreme Court Justice Clarence Thomas should recuse himself and not participate in any cases that have to do with the 2020 presidential election.”
And while the Supreme Court Justices are not bound by the canons of judicial ethics that apply to other federal judges, they are bound by 28 U.S.C. § 455. That statute prohibits them from participating in cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.”
It also requires Justices to disqualify themselves from any proceedings in which their “impartiality might reasonably be questioned.”
So far, Justice Thomas has acted as if that statute does not apply to him. His inaction has prompted calls for a congressional investigation of the Justice and his spouse.
In the midst of this controversy, Justice Thomas has given a series of public speeches before partisan groups and actively taken sides in the culture wars that have roiled the country.
In March of this year, appearing at an event hosted by former Republican Senator Orrin Hatch’s foundation, Thomas condemned “cancel culture” and launched a broadside, reminiscent of Trump, against the media.
In early May, speaking to a conference of Eleventh Circuit judges in Atlanta, he bemoaned what he described as a fraying of civility in the culture at large. He noted the increased unwillingness of Americans to “live with outcomes we don’t agree with.”
Too bad he was not able to convince his wife to do exactly that.
On May 13, Thomas gave another speech in which he launched a scathing criticism of the tactics of what he described as the “left,” contrasting them unfavorably with the way conservatives behave.
Talking about the recent abortion rights protests at the homes of his colleagues, Thomas said “You would never visit Supreme Court justices’ houses when things didn’t go our way. We didn’t throw temper tantrums. It is incumbent on us to always act appropriately, and not to repay tit for tat.”
He added that conservatives had “never trashed a Supreme Court nominee.”
The Justice’s choice of pronouns—“We” and “us”—shows his alliance with conservatives and his hostility to progressive politicians.
Finally, during his May remarks, he took a swipe at the current Court, comparing it unfavorably, as the New York Times noted, to “the court that sat for 11 years without a change in personnel before the arrival of Chief Justice John G. Roberts Jr. in 2005.” His thinly veiled attack on the Chief Justice is an unheard-of indiscretion in the modern period. But his complaint was about the court as a whole.
“This is not the court of that era,” Justice Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”
The once famously taciturn Justice is now saying too much about his particular brand of “grievance conservatism.” But he is remaining silent about much more important conflicts of interest created by his wife’s efforts to undo the results of a free and fair election.
What Justice Thomas says, and refuses to say, reveals a lot about his faltering commitment to the rule of law and to constitutional governance in this country.
