Jonathan P. Baird

On Twitter, I saw that Congresswoman Alexandria Ocasio-Cortez said that Justice Clarence Thomas should resign from the Supreme Court. I must say – I agree.

People often say that there are no ethical rules binding on Supreme Court justices. That is not entirely true. While there is no specific judicial code of conduct for the High Court, justices are bound by a federal law that bars them from hearing cases if their spouses have “an interest that could be substantially affected by the outcome of the proceeding”.

That statute, 28 U.S.C. 455, also stipulates that they recuse themselves in cases where their impartiality might reasonably be questioned. There is the matter of the appearance of impropriety. Conflicts of interest matter and it is fundamental ethics that a judge recuse if there is a bad look.

We now know that Justice Thomas’s wife, Ginni Thomas, was integrally involved in the pro-Trump Stop the Steal movement. She made repeated efforts to pressure White House Chief of Staff Mark Meadows to pursue various avenues to overturn the 2020 presidential election. In more than two dozen bizarre text messages between the election and January 6, 2021, Ginni Thomas begged Meadows to do everything in his power to reverse the election.

Ginni Thomas told Meadows to “release the Kraken and save us from the left taking America down”. She texted that members of “the Biden crime family” would eventually be living on barges off GITMO to face military tribunals for sedition. She described the election as “a heist” and “an obvious fraud”.

Ms. Thomas attended the January 6 rally held near the White House. She also signed an open letter criticizing the congressional investigation of January 6. She is not a party in a January 6 case but she is very much on one side.

In spite of his wife’s partisan role, Justice Thomas has not recused himself from any January 6-related case. There have already been a number of cases. He was the sole dissenter in the recent case in which Trump attempted to stop the House January 6 Committee from obtaining White House records held by the National Archives. He offered no reasoning.

Charles Geyh, a legal ethics professor at Indiana University, responded:

“There’s a difference between having a spouse who has an active interest in seeing the law changed and someone who is actually part of the story of the case. I don’t know how someone could be impartial when their spouse is part of the record that may be before the judge.”

This is not an ethical close call. No way should Justice Thomas be sitting on any January 6-related case, now or in the future. His association is too close and his ruling would have the appearance of impropriety. It is highly possible, even likely, that disclosures could reveal more about his wife’s involvement in Trump’s coup attempt. She has been called to testify before the January 6 committee.

Unfortunately, where Justice Thomas is concerned, the January 6 cases are just the tip of an ethical iceberg. Ginni Thomas’s lobbying for a wide range of far right causes has repeatedly enmeshed her political activities with cases where Justice Thomas rules.

Justice Thomas is aware of the need to recuse in some situations because he has done it 54 times since 1993. Many of his recusals were due to possible conflicts because of his son’s business and choice of college. He has, however, never recused from any case because of his wife’s lobbying.

The situation is unusual. As Gabe Roth, the Executive Director of the organization Fix the Court, has said:

“No spouse, to my knowledge, has ever actively lobbied other branches of government in the public sphere on issues before the justices like Ginni Thomas has.”

I would expect that the supporters of Justice Thomas would say the left is trying to take him down but his ethical wounds are entirely self-inflicted. There are quite a few examples and I will cite a few:

• During the years 2003-2007, Ginni Thomas worked for the Heritage Foundation, a conservative think tank and public policy promoter. The job was lucrative and she earned $686,589 working for Heritage in this period. Justice Thomas repeatedly failed to report his wife’s income on financial disclosure forms as required by federal law.
• In January 2008, Justices Thomas and Scalia attended a private political retreat organized by the billionaire Koch brothers, opponents of campaign finance reform. All expenses were paid by the Federalist Society. Later, Thomas would rule with the majority on Citizens United. He has been the lone justice to argue that laws requiring public disclosure of large political contributions are unconstitutional.
• In 2009, Ginni Thomas set up her lobbying firm, Liberty Central, dedicated to fighting the “tyranny” of Obama and Obamacare. The organization was funded by two large anonymous contributions. Ms. Thomas paid herself an annual salary of $120,000. Again, Justice Thomas failed to disclose her income on financial disclosure forms. Thomas always ruled against Obamacare.
• In 2017-18, Ms. Thomas received $200,000 from Frank Gaffney’s organization, the Center for Security Policy. Gaffney is a well-known Islamophobe and anti-Muslim conspiracy theorist who advocated for Trump’s Muslim ban. His group submitted an amicus brief to the Supreme Court when the Court considered the issue. Thomas upheld the Muslim ban.

Where things get sketchy is the overlap between Ginni Thomas’s lobbying and Clarence Thomas’s judging. There is a failure of accountability and a wild level of corruption. Spouses often share income. Ginni Thomas profits and gets dark money from a wide range of powerful conservative interest groups that have cases that come before the Court. Are we supposed to pretend the obvious impropriety does not exist, that they don’t share income, or discuss everything?

Ethical self-policing by the justices hasn’t worked. Sadly, Chief Justice John Roberts has turned a blind eye. In suggesting Justice Thomas resign, I hold no hope that would actually happen. But, it should. Justice Thomas hasn’t simply embarrassed the Court – he has tarnished its integrity.

The Trump era has led to such a moral debasement and cynicism that circumstances which obviously require investigation get brushed over and blown off. Thomas should not be getting a pass.