The first cases related to the prosecutions of Jan. 6 defendants, including a certain former president, have arrived at the Supreme Court, and with them comes the burning question: Will Justice Clarence Thomas, the spouse of a documented election-denying, pro-Trump conspirator, recuse himself as he should?
There is little in Thomas’ recent past — very little — to suggest that he will. He has participated in several election cases and predictably shown favor to the Republican arguments. What’s more, there is nothing to force him to do the right thing in the vaunted new/not-new code of conduct that the Supreme Court reluctantly issued last month after repeated stories of some justices’ — chiefly Thomas’ — misconduct. That hole in the code just underscores its hollowness.
Last week, the Supreme Court agreed with rare speed to consider a gutsy motion from special counsel Jack Smith, reflecting Smith’s zeal to thwart Donald Trump’s delay tactics and get a verdict before the 2024 election in the Washington case alleging that the former president sought to subvert the 2020 election.
Smith asked the justices to expedite their consideration of Trump’s claim of presidential immunity for his actions, without waiting for the Court of Appeals to act. (The District Court judge in this case, Tanya S. Chutkan, ruled that the former president didn’t enjoy “the divine right of kings to evade the criminal accountability.” Trump appealed.)
Now the Trump team has until Wednesday to respond to Smith’s motion. The Supreme Court could grant or reject Smith’s request as soon as this week. You have to imagine that Chief Justice John G. Roberts Jr. would like to settle the matter ASAP, rather than rule in the thick of the 2024 campaign.
The court also said last week that it would decide a separate case that challenges the federal government’s prosecutions of hundreds of rioters at the Capitol on Jan. 6, 2021, for “corruptly obstructing an official proceeding” — that is, the certification of Joe Biden’s 2020 election win. Trump, too, has been so charged, though he faces other counts as well.
Thomas should have no say in either matter before the court. None.
His wife, Virginia “Ginni” Thomas, is a longtime conservative activist who robustly egged on the effort to overturn the 2020 election all the way to the White House. You don’t have to be an attorney to see how that poses an apparent conflict of interest for her husband. Yet Thomas has several times declined to recuse himself in previous 2020 election cases.
His defiance of recusal norms, amid widespread demands from the legal community, is a scandal every bit as much as the stories of the luxury vacations, property deals and more that he and Ginni have enjoyed thanks to a billionaire with occasional interests before the court, as ProPublica and other publications have damningly documented.
The evidence of corruption and blindness to his Jan. 6 conflict is such that, arguably, Thomas should resign. He won’t, so let’s stick to arguing for recusal.
Recall some of the highlights (lowlights?) of Ginni Thomas’ actions after Trump lost.
Thanks to Mark Meadows, Trump’s last White House chief of staff, we have her unhinged text messages to him, like this one: “Biden and the Left is attempting the greatest Heist of our History.” She passed along conspiracy theories. She urged that Trump never concede: “It takes time for the army who is gathering for [Trump’s] back.” She encouraged the fake Trump electors scheme in battleground states. She was among the organizers of the “Stop the Steal” movement for the Jan. 6 rally and march to the Capitol, and that day wrote on Facebook, “LOVE MAGA people!!!!” She was deposed by the House Jan. 6 committee; its investigation, she said, was a “political persecution” of “citizens who have done nothing wrong.”
Amid his wife’s post-election maneuverings, Thomas objected when his fellow justices in December 2020 rejected Texas’ bid to overturn pro-Biden results in four states. He was the sole dissenter in two other relevant cases, in February 2021 and January 2022, first opposing the court’s rejection of Republicans’ case against Pennsylvania mail-in ballots favoring Biden and then its denial of Trump’s motion to withhold his presidential records from the House Jan. 6 committee. In October 2022, he temporarily blocked a lower court order requiring Republican Sen. Lindsey Graham to testify before a Georgia grand jury about election subversion efforts; the full court later upheld Graham’s subpoena.
And, perhaps most egregiously, in November 2022, Thomas participated in an Arizona case that directly implicated his wife, who had communicated with the state’s fake Trump electors. He dissented when the majority denied a request from the Arizona Republican Party chair, one of the fakers, to block the House Jan. 6 committee’s subpoena for her records.
I’m all for spouses having separate careers. But when the other spouse is a life-tenured, virtually unaccountable member of the Supreme Court, from which there is no appeal, both must take conflicts seriously and act accordingly. The integrity of the highest court is at stake.
As far as we know, there has been just one, relatively minor, exception to Thomas’ refusals to recuse. In October, without explanation, he stayed on the sidelines when the court rejected a petition from John Eastman, a Jan. 6 defendant and Thomas’ former law clerk, to overturn a lower-court ruling against him.
Might that recusal be a sign of a new, more ethical Justice Thomas? Don’t count on it. The court’s untested code of conduct still relies on “individual justices, rather than the court, [to] decide recusal issues.”
Thomas is not a justice who has shown good judgment. I’d love for him to prove me wrong.
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