The Washington Post
Critics say Ginni Thomas’s activism is a Supreme Court conflict. Under court rules, only her husband can decide if that’s true.
Michael Kranish - 3h agoGinni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the Jan. 6 insurrection as “overtly partisan political persecution.”
One month later, her husband, Supreme Court Justice Clarence Thomas took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.
Thomas was the only justice to say he would grant Trump’s request.
That vote has reignited fury among Justice Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court.
“I absolutely do believe that Clarence Thomas should have recused from the Jan. 6 case,” said Gabe Roth, executive director of Fix the Court, a nonpartisan advocacy group, who called the Supreme Court “the most powerful, least accountable, institution in Washington.”
While the Supreme Court is supposed to operate under regulations guiding all federal judges, including a requirement that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” there’s no procedure to enforce that rule. Each justice can decide whether to recuse, and there is no way to appeal a Supreme Court member’s failure to do so.
Unlike in lower courts, there is no other judge that can step in, and thus a recusal by one justice would mean considering the case with only eight justices, increasing the chance it could not be resolved.
Thomas, 73, has recused himself 32 times in the last 28 years, mostly on petitions never granted by the court, according to research by Roth’s group. (He recused himself more often in his first two years on the court, due partly to conflicts with his previous employment.) He has recused himself in a family matter, sitting out a case involving a college that his son attended. But Thomas has never bowed out of a case due to alleged conflicts with his wife’s activism, according to Roth.
Ginni Thomas has long been one of the nation’s most outspoken conservatives. During her husband’s time on the Supreme Court, she has run organizations designed to activate right-wing networks, worked for Republicans in Congress, harshly criticized Democrats who she said were trying to make the country “ungovernable,” and handed out awards to those who agree with her agenda. Ginni Thomas also worked closely with the Trump administration and met with the president, and has come under fire over messages praising Jan. 6 crowds before the attack on the Capitol. In a number of instances, her activism has overlapped with cases that have been decided by Clarence Thomas.
Thomas’s vote in the Jan. 6 case is such a striking conflict of interest, critics say, that some hope it sparks further support for long-sputtering efforts to toughen rules governing the justices — an effort bolstered by a White House commission last month that noted the inherent problem with court’s recusals.
“It doesn’t get more partisan than sending a letter to the Republican caucus” criticizing the Jan. 6 committee, said Rep. Hank Johnson (D-Ga.), author of several bills that would require an independent review to determine when Supreme Court justices should recuse. He said in an interview that Clarence Thomas’s conflicts with his wife’s work make him “the poster child” for passing the ethics legislation.
However, some scholars said Clarence Thomas had no reason to recuse in cases such as the Jan. 6 decision. Louis J. Virelli III, the author of “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said in an interview that a spouse’s ideological position alone is no reason for a justice to recuse.
“Ginni Thomas is not a party to the case, nor is her organization as I understand it, so the fact that his spouse would prefer one outcome in the case is not in and of itself disqualifying,” Virelli said. He also said he did not believe it would be constitutional for Congress to impose a “recusal mandate” on the Supreme Court.
Caroline Fredrickson, a Georgetown University law professor who served on the White House commission, said that she could think of no precedent for Justice Thomas’s decision to rule on issues closely linked to his wife’s activism.
“In every case that has come up, he has shown no interest in recusal and has in fact seemingly been defiant,” Fredrickson said. “To be a Supreme Court justice and to be married to a firebrand activist who’s trying to blow things up” is unique. “It’s so out of bounds that if it weren’t so frightening, it would be comical.”
Fredrickson said that while Thomas theoretically is supposed to recuse himself when there is a perceived conflict, “there’s no binding mechanism” to enforce it. “It’s sort of the honor system, it depends on their own evaluation. … It’s kind of crazy. They’re supposed to be responsible for keeping us all on the right side of the law. And in fact, they don’t have any responsibilities themselves.”
But Michael Ramsey, who also served on the White House commission and is a former clerk for conservative justice Antonin Scalia, said he saw no reason for Clarence Thomas to recuse in the Jan. 6 case. “If Justice Thomas says he is not influenced by his wife, I believe him,” Ramsey said in an interview.
Ginni and Clarence Thomas, and a Supreme Court spokesperson, did not respond to a request for comment.
Neither Clarence nor Ginni Thomas appear to have spoken publicly about his stance on recusals related to her work, but in the past he has batted back criticisms of his objectivity. Amid demands that he recuse himself from an Obamacare case in 2011, Thomas said critics “seem bent on undermining” the court.
In a recording obtained by Politico at the time, he said his wife gave “24/7 every day in defense of liberty,” and that “there is a price to pay today for standing in defense of your Constitution.”
Ginni Thomas, who served as an attorney for the U.S. Chamber of Commerce, met Clarence — then the head of the Equal Employment Opportunity Commission — on lunch date in 1986, and they were married the following year. Four years later, Clarence Thomas survived tumultuous nomination hearings and began serving on the Supreme Court.
Ginni Thomas, already known for her conservative activism, eventually went to work for House Majority Leader Richard K. Armey (R-Tex.). She pushed back against Democratic complaints that there was a conflict of interest between her work and her husband’s Supreme Court rulings, telling the Wall Street Journal that “You really are seeing with Supreme Court or congressional spouses an evolution” in the roles men and women play.
The first major case that drew national attention to that potential conflict came in 2000, when the fate of the presidential campaign between Republican George W. Bush and Democrat Al Gore came before the Supreme Court. At the time, Ginni Thomas was working with the Heritage Foundation to recommend people for jobs within a possible Bush administration. Some Democrats called for Clarence Thomas to recuse himself from hearing the case that would decide the presidency, but Ginni Thomas told the New York Times at the time that “There is no conflict” and that she rarely discussed cases with her husband.
It was a pivotal, historic moment, and Gore faced a decision that would set the tone for politicians dealing with the court for years. Pressed by his aides about whether to call out the perception of the conflict, Gore instead instructed his deputy campaign manager Mark Fabiani to issue a statement that said, “The vice president has the highest regard for the independent judiciary, so we’re not going to comment on the various questions that have been raised.”
Thomas then joined with the 5-4 majority that ruled for Bush.
Today, Fabiani looks back and sees Gore’s faith in the independence of the judiciary as a turning point in history.
“It’s an attitude that, today, seems positively quaint,” Fabiani told The Washington Post in an email. “I wish we had objected more vigorously to the Vice President’s high-minded advice … Ginni Thomas’ claim in 2000 that she doesn’t talk to her husband about Supreme Court business now seems laughable. Is there a single opinion that Justice Thomas has ever written that is inconsistent with his wife’s far right-wing views?”
Gore did not respond to a request for comment.
In 2011, a group of 74 House Democrats wrote a letter to Clarence Thomas urging that he recuse himself from ruling on whether to uphold the Affordable Care Act, known as Obamacare. The letter noted that Ginni Thomas had received $686,589 between 2003 and 2007 from the conservative Heritage Foundation, which opposed the health care law. (Clarence Thomas had not disclosed the source of her income, as required; he was not required to disclose to amount of her earnings.) In addition, the letter said Ginni Thomas received an undisclosed salary from a nonprofit group she ran called Liberty Central that received undisclosed donations, which was made possible by Clarence Thomas’s vote with the 5-4 majority in the Citizens United case.
Clarence Thomas did not heed the request from House Democrats and he did not recuse in the 2012 case that upheld Obamacare. He was in the minority in that 5-4 decision. (Republicans had also called on Justice Elena Kagan to recuse from ruling on Obamacare, due to her work as solicitor general in the Obama administration — but she also remained on the case and voted to uphold the law.)
Ginni Thomas later founded Liberty Consulting, which she still operates. Her website does not list clients but provides a list of conservative charities that she supports, and says she speaks to “activist groups around the country.”
Ginni Thomas has reveled in her role as one of the nation’s leading right-wing activists, saying that conservatives must not “be complicit as the left moves its forces across our country.”
The Post reported in 2018 that she shared a post that accused Democrats of committing fraud in the midterms. She claimed that students who campaigned for gun control after surviving the mass shooting at a Parkland, Fla., high school were “dangerous to the survival of our nation.” She claimed President Barack Obama wiretapped Trump.
She wrote to officials in Clifton, Va., in 2020 urging that they take down a Black Lives Matter banner, saying “Let’s not be tricked into joining cause with radical extremists seeking to foment a cultural revolution because they hate America.”
When Ginni Thomas interviewed her husband in 2018 for a video on the conservative website the Daily Signal, he told his wife that being a justice “would be impossible without you. I have to be honest. It’s sort of like, how do you run with one leg? You can’t.” He also pushed back against those who suggested he should rule a certain way because he is Black. “As a judge you don’t get to be on one team or the other. You have to think independently in order to live up to the oath that you take.”
Ginni Thomas, in recent years, cultivated close ties to the Trump administration and other Republican leaders — an arrangement that critics say has created a number of potential conflicts for her husband.
In 2019, Ginni Thomas gave what she called an “Impact Award” to then-Rep. Mark Meadows (R-N.C.), who co-founded the Freedom Caucus, a group of hard-right Republicans in the House. In accepting the award, Meadows, who later became Trump’s chief of staff, told the audience he had “teamed up” with Ginni Thomas to combat charges against Trump in the first impeachment trial.
Meadows has refused to comply with a subpoena from the Jan. 6 committee, leading the committee to refer the matter to the Justice Department for possible prosecution — a matter that could wind up before the Supreme Court. Meadows could not be reached for comment.
Advocates have also said potential conflicts may extend to people who work with Ginni Thomas and file amicus “friend of the court” briefs. The New Yorker earlier this year detailed how the Center for Security Policy, run by Frank Gaffney, paid Ginni Thomas’s company for consulting services; tax returns reviewed by The Post show the center paid $101,500 in 2017 and $134,500 in 2018 for consulting.
Gaffney and others filed an amicus brief in 2017 supporting Trump’s travel restrictions on people from Muslim-dominated countries. The court upheld the restrictions by a 5-4 vote, with Clarence Thomas in the majority.
“We know that she has been a paid consultant to groups that have submitted these briefs before the court,” Johnson, the Georgia congressman, said.
Gaffney did not respond to a request for comment.
Sen. Sheldon Whitehouse (D-R.I.), who said that amicus briefs have flooded the Supreme Court in an effort to sway justices, has introduced legislation that would require those who file such briefs to disclose the source of the financing.
“They're not even at the point of letting the parties and themselves and the public know who's really behind the amicus front groups,” Whitehouse said in an interview.
Ginni Thomas has worked closely with the Trump administration on an array of matters, leading a group of conservative activists who met at the White House with the president, and going to the White House to celebrate his acquittal in his first impeachment trial. Her actions on Jan. 6, 2021, have also drawn scrutiny.
Hours before the attack on the Capitol, she celebrated the crowd at the “Save America” rally on the Ellipse, where Trump and others made baseless claims that the election had been stolen. She urged people to tune into C-SPAN “for what Congress does starting at 1:00 p.m. today. LOVE MAGA people,” referring to Trump’s slogan, “Make America Great Again.” In a subsequent post, she wrote, “GOD BLESS EACH OF YOU STANDING UP OR PRAYING.”
After the protesters stormed the Capitol, Ginni Thomas updated her post to note that it was written before the violence. She later wrote a message to a group of about 120 people who had clerked for her husband, suggesting that she would refrain from inserting herself in such divisive political matters.
“I owe you all an apology. I have likely imposed on you my lifetime passions,” she wrote. “My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long.”
In the wake of that apology, reported last year by The Post, she wrote, “Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”
Nonetheless, months later, Ginni Thomas inserted herself into one of the most fraught political issues of the moment: the investigation into what led to the insurrection.
She was among a group called the Conservative Action Project who signed a Dec. 15, 2021, letter to House Minority Leader Kevin McCarthy (R-Calif.) decrying the probe. The letter said that the two Republicans on the panel, Reps. Liz Cheney (Wyo.) and Adam Kinzinger (Ill.), should be removed as members of the House Republican Caucus, complaining that the committee put out “improperly issued subpoenas and other investigatory tactics designed not to pursue any valid legislative end, but merely to exploit for the sake of political harassment and demagoguery.”
Eight days later, Trump’s lawyers asked the Supreme Court to stop White House records from his administration from being turned over to the congressional committee. “Congress may not rifle through the confidential presidential papers of a former President to meet political objectives,” the filing said.
Meadows, the self-described teammate of Ginni Thomas, filed an amicus brief in support of Trump’s request.
On Jan. 19, the Supreme Court rejected the request. Clarence Thomas, the lone justice to say he would have sided with Trump, did not explain his reasoning.
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