--This article first appeared in The Progressive.
As I have written before, the U.S. Supreme Court is facing a crisis of legitimacy driven by a growing public perception that the court is a political institution dominated by conservative activists masquerading as impartial guardians of the Constitution.
No single justice is more responsible for this crisis than Clarence Thomas. Scandal and controversy have plagued Thomas since he was credibly accused of sexual harassment by law professor Anita Hill during his 1991 Senate confirmation hearing. Since then, he has carved out a well-deserved reputation as the court’s most rightwing jurist. Thomas is also an ardent proponent of “originalism”—the legal philosophy that holds that the Constitution should be understood today as closely as possible to the way it was understood when it was written in the eighteenth century.
In 1993, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would continue to make the lives of liberals “miserable.”
On January 19 of this year, Thomas attempted to make good on that pledge in the case of Trump v. Thompson. By a margin of 8-1, the court rejected a lawsuit filed by the former President to block the National Archives from releasing White House documents sought by the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. Thomas was alone in his dissent.
Were it not for some dogged sleuthing by investigative journalists Bob Woodward and Robert Costa, Thomas’s dissent might have been forgotten amid the many other conservative votes he has registered during his lengthy career. Writing in The Washington Post on March 24, Woodward and Costa reported that Thomas’s wife, Virginia (who goes by the nickname Ginni), had texted White House Chief of Staff Mark Meadows twenty-nine times between early November 2020 and mid-January 2021, urging Meadows to push to overturn of the results of the presidential election.
The text messages have sparked demands from Democrats and legal commentators that Thomas recuse himself from all future cases related to the insurrection and any other litigation surrounding the 2020 election.
So far, Thomas has not publicly addressed his wife’s texts, nor has he given any indication that he will heed calls to not participate in such matters.
This is by no means the first time Justice Thomas has faced recusal demands as a result of his wife’s aggressive political activism and his own intransigence. In 2011, seventy-four House Democrats signed a letter calling for Thomas to stand aside from any appeals involving the Affordable Care Act in light of Ginni Thomas’s record as a highly paid lobbyist working against national health care reform. He declined.
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Thomas also failed to recuse himself from the court’s Muslim travel ban ruling in 2018 (Trump v. Hawaii), even though Ginni Thomas reportedly had been paid $200,000 in 2017 and 2018 by a group supporting the ban.
By the fall of 2020, as the election approached, Ginni Thomas’s insider connections to the bases of conservative power expanded. She became a leader in the Groundswell Group, a coalition of hardliners dedicated to fighting progressivism and keeping Donald Trump in office. Parlaying her resume and her marriage to Clarence Thomas, who Trump once described as his “favorite Justice,” she gained extraordinary access to Meadows and the inner circles of the White House.
Although Ginni Thomas has denied trying to influence her husband’s deliberations, her text exchanges with Meadows raise deeply troubling ethical concerns. Among the messages is one she sent to Meadows on November 24, 2020, disclosing that she had discussed the election issue with “my best friend.” While the texts do not identify the friend, this is a term the couple have routinely used to refer to each other over the years.
Given that backdrop, Clarence Thomas’s participation in the Thompson case was entirely improper and outrageous. A federal statute stipulates that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A subsection of the same statute requires Justices and judges to disqualify themselves when they know that their spouses have any financial “or other interest that could be substantially affected by the outcome of the proceeding.”
The federal statute is similar to laws in place across the country that apply to state-court judges. Like the federal statute, such laws are designed to avoid not only actual instances of judicial bias but also the appearance of bias.
Even if Thomas didn’t know about his wife’s text messages or her admitted attendance at the Stop the Steal demonstration preceding the January 6 storming of the U.S. Capitol, he certainly knew about her activism in general as well as her devotion to Trump. In the view of NYU Law School Professor Stephen Gillers and other prominent legal ethicists interviewed by The New York Times, Thomas had an affirmative duty to inform himself as to her activities. As Gillers put it, Justice Thomas “cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”
Unfortunately, there is little, if anything, that can be done to bring Thomas to heel. The Constitution provides him with lifetime tenure. Impeachment, however justified, is a pipedream, given the two-thirds Senate majority needed for conviction. Also out of reach, at least for the foreseeable future, are efforts to expand the size of the court or to impose term limits on the justices.
The Supreme Court stands at the pinnacle of the U.S. legal system. Yet its members are free to ignore the federal recusal statute and, unlike every other federal and state court in the nation, our highest court bewilderingly lacks a binding written code of ethics. There is no way to appeal its decisions.
According to a recent Quinnipiac poll, 52 percent of Americans believe Thomas should step down from all 2020 election cases. As more details about the plot to overturn the election are revealed and more related cases reach the court, that percentage is likely to increase.
Maybe someday Thomas will have his reckoning. Let’s just hope that day arrives before 2034, the year he long ago set for his retirement.