Legal scholars and lawyers who know Justice Thomas say he can no longer ignore his wife’s activism

‘I know of nothing remotely like this in the history of the court,’ says legal expert

Andrew Feinberg
Washington, DC
Friday 25 March 2022 23:31
Comments
SCOTUS Justice Clarence Thomas’ Wife Calls GOP Lawmakers ‘Pathetic’ for Not Backing Trump Harder

Recently reported text messages between ex-White House chief of staff Mark Meadows and Virginia ‘Ginni’ Thomas, a longtime conservative activist and the wife of the Supreme Court Justice Clarence Thomas, could put additional scrutiny on the work of the court’s longest-serving member, according to legal experts and people who know the couple.

On Thursday, CBS News and the Washington Post reported that Ms Thomas urged Mr Meadows and then-president Donald Trump to press on with challenges to the 2020 election long after it became clear Mr Trump had lost to Joe Biden.

The text messages, which are now in the hands of the House select committee investigating the 6 January 2021 attack on the US Capitol, have drawn attention to Justice Thomas and his spouse because of his sole dissenting opinion in a Supreme Court case brought by Mr Trump to prevent White House records from being turned over to the committee.

Ms Thomas, a non-practicing attorney who runs her own political consultancy, began texting Mr Meadows shortly after the election, sending him a string of conspiracy theory-laden messages alternatively suggesting that the election was stolen, or that Mr Trump had orchestrated a massive operation to ensnare his myriad enemies, real or perceived, in a trap.

In one such message, she told Mr Meadows that “watermarked ballots” were part of “a huge Trump & military white hat sting operation in 12 key battleground states,” and in another claimed that the “Biden crime family” and “ballot fraud co-conspirators” – a category including “elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc” – were being “arrested & detained” for trial in barges off the US naval base at Guantanamo Bay, Cuba.

Their incendiary content has also drawn attention to Justice Thomas’ work on the court because he was one of two dissenters in a December 2020 case brought by Texas Attorney General Ken Paxton in an attempt to throw out electoral votes from Pennsylvania and other swing states won by Mr Biden.

At least one Democratic senator, Ron Wyden of Oregon, has called for Mr Thomas to recuse himself in any future cases involving the 6 January attack, or involving Mr Trump should he run for president once more in 2024.

The Independent has contacted Ms Thomas for comment. It does not appear Ms Thomas has publicly commented on the newly released text messages.

Although judges on US district and circuit courts must follow a judicial code of conduct that spells out when a judge must recuse themselves from presiding over a case, Supreme Court justices are not required to follow the same code. US law does require a judge to step back from a case if their spouse has “any … interest that could be substantially affected by the outcome” or if their impartiality “might reasonably be questioned”.

While Ms Thomas was not a party to the Trump presidential records case, Mr Meadows submitted a supporting brief urging the court to grant Mr Trump’s appeal of a District of Columbia circuit court’s decision rejecting his claim of executive privilege over White House records created during his time in office which Mr Biden ordered released to the committee.

Virginia Thomas

Some longtime observers of the court say the fact that Ms Thomas’ communications with Mr Meadows may have been at issue with the case should’ve been enough to warrant Mr Thomas’ recusal.

Harvard Law School emeritus professor Laurence Tribe, a veteran Supreme Court litigator and author of a widely used textbook on US constitutional law, told The Independent that the conflict created by Ms Thomas’ activism and involvement with Mr Meadows’ attempts to overturn the election was “unprecedented”.

“It’s completely off the charts,” he said.

Mr Tribe said the one situation that might be an analogue was a situation which prompted the resignation of Justice Abe Fortas in the 1960s, which he called “a scandal at the time” which would be “far less problematic” today.

“I know of nothing remotely like this in the history of the court,” he said.

The Harvard emeritus professor acknowledged that there is “nothing” that makes Mr Thomas responsible for his wife’s actions, but said the “direct connection” between Ms Thomas’ activities and cases that are coming before the court make the Thomases situation “a very different matter” than the one which brought down Mr Fortas.

“In the past, when people said: ‘Isn't it inappropriate for Clarence Thomas and his wife to be so active in the Federalist Society, my reaction to that was ‘grow up, get over it’. The spouse is not the property of her husband anymore than he is the property of, of his wife,” he said. But here, it's not simply a matter of the proximity between the justice and the justice’s spouse – it's a matter of involvement in a case where somebody you're very close to, is a party or is a potential witness or is directly involved.”

Another veteran appellate litigator, a conservative lawyer who knows both Mr and Ms Thomas socially, agreed that it’s unfair to judge Mr Thomas’ work on the court based on his wife’s activism, and pointed out that there have been other American jurists with politically active spouses in the past.

The long-time Federalist Society member told The Independent many in the conservative legal community have tried to judge Ms Thomas’ activities separate from her husband’s legal work in the past.

The attorney said Ms Thomas’ activities were more problematic for her husband today because her political beliefs are now more mainstream within the Republican Party.

Supreme Court Justice Clarence Thomas, left and his wife Virginia Thomas, right, leave the the Basilica of the National Shrine of the Immaculate Conception in Washington after attending funeral services of the late Supreme Court Associate Justice Antonin Scalia, on Feb. 20, 2016.

“She has more influence and more ability to inject herself in situations that make his job, frankly, more difficult,” he said.

The veteran conservative lawyer expressed scepticism that Ms Thomas would have told her husband about all her activities during the period when Mr Meadows was filing briefs before the Supreme Court.

“I don't think he’d have reason to believe that they'd be actually involved in the cache of documents that was in dispute before the Supreme Court,” he said. “But all of that said, having the wife a Supreme Court justice engaging in activities that are designed to stop the peaceful transfer of power under the Constitution of the United States is appalling and creates an appearance of impropriety – it’s just off the charts bad business”.

Another lawyer, a conservative legal veteran familiar with Justice Thomas – who also asked for anonymity because she often has cases before the court – told The Independent that Mr Thomas’ attitude on recusal is a product of his contentious 1991 confirmation hearing and the negative press coverage that accompanied it, and added that the current controversy involving Ms Thomas may make his prior reluctance to give in to critics untenable now.

“Being hard-headed about recusal is a luxury he can no longer afford,” she said.

The other litigator and Federalist Society veteran also said Mr Thomas is not going to be able to be as cavalier when it comes to recusal if a hot-button case where his wife might have involvement as an activist comes before the court.

But he said Mr Thomas won’t have a problem with following a stricter standard for himself.

“I basically do think he is an honest broker. And I think that if there's another dispute that comes up before the court, with this stuff out there, I think he's going to be a lot more cautious about participating,” he said.

“As a technical matter, her activism shouldn't create a blanket requirement that he recused himself from anything that has a contentious political content … but the appearance matters, and that’s why he needs to be extra careful from now on.”

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