Tag Archives: legal ethics

A newsletter from TNR summed up my astonishment over recent revelations detailing the extent of Ginni Thomas’ involvement in the Big Lie. (I can never find URLs for newsletters–sorry about that.)

That stunning Washington Post piece by Bob Woodward and Robert Costa about Ginni Thomas’s text messages to Mark Meadows needs to be read at least twice to take in the full measure of corruption and venality it conveys. Here were people trying to overturn American democracy, saying that this was not politics but war—oh, and while saying all this, invoking the name of Jesus Christ.

The New Yorker described the reaction of legal ethicists to the revelation that Virginia (Ginni) Thomas–wife of Supreme Court Justice Clarence Thomas–“colluded extensively with a top White House adviser about overturning Joe Biden’s defeat of then President Donald Trump.”

On March 24th, the Washington Post and CBS News reported that they had copies of twenty-nine text messages between Ginni Thomas and White House Chief of Staff Mark Meadows. In those texts, she urged Meadows to help invalidate the results of the Presidential election, and employed QAnon conspiracy theories to justify her assertion that the election was an “obvious fraud.”

It was necessary, she told Meadows, to “release the Kraken and save us from the left taking America down.” Ginni Thomas’s texts to Meadows also refer to conversations that she’d had with “Jared”—possibly Trump’s son-in-law Jared Kushner, who also served as a senior adviser to the Administration. (“Just forwarded to yr gmail an email I sent Jared this am.”)

Not surprisingly, the legal ethicists quoted in the New Yorker article were aghast; all of them agreed that–at a minimum–Clarence Thomas would have to recuse himself from participating in any case involving Trump, January 6th or the election. (In any sane political environment, these revelations would immediately generate an impeachment of Thomas, but given the extent to which partisanship reigns supreme in today’s Senate, the prospects of that outcome seem dim.)

Supreme Court Justices aren’t bound by the judicial code of conduct that applies to all other federal judges, which mandates that they recuse themselves from participating in any cases in which personal entanglements could cause a fair-minded member of the public to doubt their impartiality. Yet Justices are subject to a federal law that prohibits them from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.” The statute, 28 U.S.C. section 455, also requires them to disqualify themselves from any proceedings in which their “impartiality might reasonably be questioned.”

Some of us have questioned Clarence Thomas’ “impartiality” for many years; the recent disclosures would seem to vindicate our suspicions.

Clarence Thomas was the only Justice to dissent from a Supreme Court decision allowing the House investigative committee to obtain records of Trump’s communications relating to the 2020 election results. It is very possible that those records included communications implicating Ginni Thomas in improper or illegal activities. And Thomas strongly dissented when the Court refused to hear a case filed by Pennsylvania Republicans trying to disqualify mail-in ballots.

Richard Hasen, an expert in election law who teaches at the University of California, Irvine, also believes that Justice Thomas should never have participated in the case weighing whether Congress had the right to review Trump’s papers. Hasen told me, “Given Ginni Thomas’s deep involvement in trying to subvert the outcome of the 2020 election based upon outlandish claims of voter fraud, and her work on this with not only activists but the former President’s chief of staff, Justice Thomas should not have heard any cases” involving disputes over the 2020 election or Congress’s investigation of the January 6th riots. 

A post at Juanita Jean addressed the “coincidence” of Clarence Thomas’ recent hospitalization and emergence of these texts.The post noted that, despite repeated press attempts to get information about the infection that landed Thomas in the hospital,  the requests have been met with silence.–a very unusual circumstance when the health of a Supreme Court Justice is at issue. (Ruth Bader Ginsberg’s every sniffle was reported.)

 Gallup polling shows confidence in the Court hitting an all-time low–continuing a slide that began with the partisan decision in Bush v. Gore, and accelerating through the theft of what should have been Merrick Garland’s seat and the subsequent elevation of a frat-boy beer lover and a cultish theocrat to the high court.

A column from the New York Times sums it up

Yes, married people can lead independent professional lives, and it is not a justice’s responsibility to police the actions of his or her spouse. But the brazenness with which the Thomases have flouted the most reasonable expectations of judicial rectitude is without precedent. From the Affordable Care Act to the Trump administration’s Muslim ban to the 2020 election challenges, Ms. Thomas has repeatedly embroiled herself in big-ticket legal issues and with litigants who have wound up before her husband’s court. All the while, he has looked the other way, refusing to recuse himself from any of these cases. For someone whose job is about judging, Justice Thomas has, in this context at least, demonstrated abominably poor judgment.