Column: Has Clarence Thomas’ wife crossed a line? Yes, and then some
Some things don’t improve over time.
Eleven years ago, I spoke with Stephen Gillers, then as now a law professor at New York University and one of the nation’s top authorities on judicial ethics, for a news story about whether Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, had crossed legal or ethical lines through her partisan activities and dark-money fundraising on issues that come before the court.
Gillers was measured. Ginni Thomas’ constitutional rights as a private citizen allowed her to do her politicking, he said, though he did suggest that fair-minded Americans could question her husband’s impartiality given her activism. It was striking, then, to see what Gillers said in a recent investigative piece about Thomas in the New Yorker. He called her conduct “reprehensible.”
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I decided to check back in with the professor.
It seems we agree that Thomas has indeed crossed a line since we last talked, becoming more brazen in her norm-busting. Shockingly, that includes her involvement in the machinations to overturn President Biden’s election and organize the rally-turned-insurrection on Jan. 6, 2021. “LOVE MAGA people!!!!” she wrote that day on Facebook, before the Capitol ransacking.
Without question, Thomas is the most partisan spouse of a justice in history. She trades on her influence in Washington, earning large sums with little if any public disclosure of the sources, or whether they have business at the court. That’s not good for the already tarnished standing of the Supreme Court, whose public approval is at its lowest level since Gallup began tracking it more than two decades ago.
“Laws cannot prevent Ginni’s conduct,” Gillers told me. “We must rely on self-restraint and a decent respect for the court. For 240 years that worked.”
He went on: “Ginni Thomas alone among the husbands and wives of the justices has shown utter disregard for the harm she inflicts on the court and the administration of justice in the service of her political goals, while benefiting from the fact that she is married to a justice. Otherwise, she’d be ignored.”
The president has had his wins and losses, but the big story is not about him. And it is not a pleasant tale.
In fairness, Thomas’ activism predates her marriage in 1987 and the justice’s confirmation in 1991. And it’s likely that Clarence Thomas comes to his far-right opinions independent of his wife’s influence; even before they actually met, they were allies against proposals mandating more equitable pay for women. Yet the spouses of Ruth Bader Ginsburg and John G. Roberts Jr. quit practicing law to avoid any potential conflicts, and Jane Roberts resigned from leading an antiabortion group.
Ginni Thomas’ prominence among conservative activists has been justifiably controversial throughout Clarence’s 30-year tenure — through the conservative Gingrich revolution of the ’90s in Congress, when she was a senior aide to House Majority Leader Dick Armey, to the tea party movement, when she formed her own short-lived group in 2010 with $550,000 from two unidentified donors, and finally to the Trump years.
In late 2000, Thomas was at the Heritage Foundation vetting job-seekers for a George W. Bush administration even as the presidential election recount proceeded — an impasse her husband helped decide in Bush’s favor in the Supreme Court’s 5-4 ruling.
The Jan. 21 New Yorker piece, and another this week on both Thomases in the New York Times, were notable for the sheer detail about Ginni Thomas’ web of far-right connections and the overlap with the court’s business.
As the New Yorker reported, one group she chairs, Groundswell, includes Trump acolyte Stephen K. Bannon and says it wages “a 30 front war” on issues including voting rights, immigration, abortion and gun control — all subjects that come before the justices. She is on the advisory board of the National Assn. of Scholars, which has filed an amicus brief against affirmative action at the court. And earlier, she was an undisclosed paid consultant to another group, the Center for Security Policy, that supported Trump’s contested Muslim travel ban; Clarence Thomas was in the 5-4 majority that ultimately upheld the ban.
Then there’s Ginni Thomas’ involvement in the fight to keep Donald Trump in power. That effort is all but certain to spawn cases for the justices.
Last month the court rejected Trump’s bid to withhold records from the House committee investigating the insurrection. Only Thomas dissented. Here’s what many stories left out: His wife had joined with other prominent conservatives in publicly condemning the committee as a “political persecution” of “citizens who have done nothing wrong.”
This parliamentary trick has mostly been used to thwart anti-slavery, anti-lynching and civil rights bills. Why are some Democrats defending this tradition?
Ethics and norms aside, no law limits Ginni Thomas’ activism. Federal law does require justices to recuse themselves in some circumstances involving real or perceived conflicts of interest. Yet while a litigant could move to have Thomas recuse, the decision whether to do so is his alone. Also, justices aren’t bound by the code of conduct applicable to other federal judges.
So what to do? Some in Congress have called for amending the recusal law to somehow cover spouses. But as Gillers indicated, that is easier said than done. The best course is for journalists to continue shining a light on the norms-busters, in hopes they can be shamed.
“Ginni Thomas is a historical aberration. She’ll be gone when Clarence is,” Gillers said. “Any solution may be worse than tolerating her mischief for a while longer.”
We’re counting the days.
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