recuse | \ ri-ˈkyüz \ transitive verb
to disqualify (oneself) as judge in a particular case; broadly: to remove (oneself) from participation to avoid a conflict of interest. –Merriam-Webster Dictionary
Last December, former Trump White House chief of staff Mark Meadows turned over 2,320 email messages to the House Jan. 6 Committee. Among them were 21 from Virginia (“Ginni”) Thomas, wife of Supreme Court Justice Clarence Thomas, urging Meadows to relentlessly act to overturn the 2020 presidential election. Eight were responses from Meadows to her. CBS News, the Washington Post, and other news outlets have reported on them.
The critical question is whether Justice Thomas has become so tainted by his wife’s ongoing political activism that he should recuse himself from cases involving the election and the Jan. 6 attack on the U.S. Capitol. So far, he has not done so. Earlier this year, he cast the lone dissent in a case ruling that the Trump administration had to submit documents to the House committee investigating the Jan. 6 invasion.
Days after the Biden victory, Ginni Thomas wrote, “Help This Great President stand firm, Mark!!! … You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
She also repeated a long-discredited QAnon conspiracy theory that the Trump campaign had “watermarked ballots” in 12 states to see how the Democrats had committed election fraud. She wrote, “Watermarked ballots in over 12 states have been part of a huge Trump & military white hat sting operation in 12 key battleground states.” There were no such ballots. The shadowy movement QAnon alleges Satan-worshiping people lead the country, and are child traffickers.
Worse still, Ginni Thomas repeated another conspiracy theory that the “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.” The U.S. has held alleged terrorists in the Guantanamo Bay Detention Camp in Cuba since 2004.
In an interview with the conservative-leaning Washington Free Beacon in mid-March, she claimed that “like so many married couples, we share many of the same ideals, principles, and aspirations for America. But we have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”
Yet in her emails to Meadows, she wrote about “a conversation” she had “with my best friend just now” about these matters. While she did not identify who this “best friend” was, she and the justice have often referred to each other this way.
Ginni Thomas attended the Jan. 6 Stop the Steal rally in front of the White House, where President Trump rallied the throng to try to keep him in office. She says she left because she was cold, not because she believed that the rally could turn deadly violent, as it did, or because she believed in the constitutional principle of the peaceful transition of power from one administration to the next. She later condemned the violence.
In 1967, Justice Tom Clark resigned from the Supreme Court when President Lyndon Johnson named his son, Ramsay Clark, attorney general of the U.S. Justice Clark specifically wanted to avoid a conflict of interest, real or apparent, should the Justice Department inevitably be involved in a case before the court. He could have recused himself from these cases, but decided appearances mattered. It was a magnanimous moment in the history of the court.
In contrast, in 2004, Justice Antonin Scalia, for example, declined to remove himself from a case involving the vice president of the United States, Dick Cheney, after the two of them went on a three-day duck-hunting trip together. Scalia feistily argued he could be objective. His vote later supported Cheney’s position.
Justices are not subject to the federal ethics rules that affect other U.S. courts. They make individual decisions concerning recusal on a case-by-case basis, something that may not always be within the realm of moral judgment. But they must follow a federal law when a conflict involves their wives: USC 28, section 455, requires them to recuse themselves when their “impartiality may reasonably be questioned.”
The New Yorker magazine and the New York Times report that several legal ethicists have long warily watched how closely Ginni Thomas works with highly conservative organizations. They have asked whether any of them may involve influencing her husband when he participates in Supreme Court decisions. Many of them have concluded that it has not mattered.
Stephen Gillers, for example, at NYU Law School, noted that he once tolerated “a great deal of Ginni’s political activism,” but she has now crossed a line: “Clarence Thomas cannot sit on any matter involving the election, the invasion of the Capitol, or the work of the Jan. 6 Committee.” Other law professors — Stephen Vladek of the University of Texas, Richard Hasen of the University of California, Irvine, and Bruce Green of Fordham — all agree with Gillers.
The revelations support their inevitable conclusion.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years. The second edition of his “American Constitutional History” was published on March 18.