Clarence Thomas’ Continuing Conflict
Caesar's wife must be above suspicion. Alas.
WaPo (“Critics say Ginni Thomas’s activism is a Supreme Court conflict. Under court rules, only her husband can decide if that’s true.“):
Ginni Thomas’sname 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 Clarence 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.
Ginni Thomas has long been one of the nation’s most outspoken conservatives. During her husband’s time on the Supreme Court, she has runorganizations 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 ClarenceThomas 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 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.”
The recusal issue itself is rather minor. The broad rules that cover the lower courts can’t apply to the Supreme Court, since there isn’t a deep bench of others who can be assigned to the case. Thomas’ wife being a conservative activist is no more a conflict in cases that she’s not directly involved in than Ruth Bader Ginsburg ruling on women’s issues or Thurgood Marshall on civil rights issues after having built their careers in those fields.
But, of course, there is nonetheless a massive and longstanding conflict of interest—running in both directions—of the spouse of a Supreme Court Justice making big bucks as a political activist.
The late, lamented Doug Mataconis blogged on this issue many times going back more than a decade ago. See “New York Times Shocked That Clarence Thomas’s Wife Has A Job” (2010); “Virginia Thomas Now Lobbying Members Of Congress, So What?” and “House Democrats Call On Justice Thomas To Recuse Himself From Heathcare Litigation” (both 2011) for examples. He was incredibly dismissive of the controversy.
In the second of those posts, he cites a March 2010 post from UCLA law professor Eugene Volokh noting that the situation was hardly unique:
Of course, Justice Thomas is not the only judge to have had a spouse in a prominent political role. Ninth Circuit Judge Stephen Reinhardt’s wife, Ramona Ripston, has just stepped down from being head of the Southern California ACLU. Third Circuit Judge Jane Roth’s husband was a U.S. Senator; Third Circuit Judge Marjorie Rendell’s husband is a governor. So I’m not sure that there’s really a judicial norm that judge’s spouses should stay out of politics, whether partisan politics, advocacy group politics, or public interest litigation (itself a form of politics, at least when done effectively).
And while the matter hasn’t to my knowledge arisen as to the U.S. Supreme Court, that might have chiefly been a matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm. All but three Supreme Court Justices have been men. Until recently, women haven’t been involved either in partisan or ideological politics at nearly the level we see now. And it makes sense that of the few male Justices who have served during an era when men their age have wives who might be interested in politics, only one has had a wife who was indeed interesting in that sort of thing. At the circuit judge level, the numbers are just much greater, as are the numbers of female judges whose husbands are interested in politics.
What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.
Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston, should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions.
It’s true, of course, that in some situations a judge might have to recuse himself because of a spouse’s or child’s involvement in a case. Judge Reinhardt, for instance, had always recused himself, if I’m not mistaken, in cases involving the Southern California ACLU. But those should generally be relatively rare situations, and limited to the family member’s actual involvement in a case and not just the family member’s political or ideological sympathy or alliance with a party.
In principle, I agree with all of that. But, as I noted in the comments of Doug’s post,
I honestly don’t know what to do about these situations. I don’t like it one bit. It creates conflicts of interest, or at least that appearance. But the fact of the matter is that the spouses of high powered people tend to themselves have high powered jobs in today’s world. That’s by and large a good thing. But not an unalloyed good.
Michael Reynolds weighed in:
I don’t see that we have any right to try and stop it, certainly. Spouses are people, too.
But anyone who thinks husbands and wives don’t affect each other’s judgments is either single, dishonest or not very self-aware.
My wife’s enemies are my enemies, my friends are her friends, we have each other’s backs and we are inside the bubble while everyone else is outside.
Once upon a time I trusted someone who reassured me they were behind a Chinese wall of separation from competing interests in the same company. That mistake cost me more money than I want to think about. Everything in life is personal, and almost no one is capable of the self-awareness and discipline required to screen out personal influences.
As did Steven Taylor:
I am with James: there is simply something untoward about the situation given what SCOTUS is and what it is does. To have the spouse of a Justice engaged in lobbying just seems problematic (made moreso by the lack of disclosure noted about and blogged about here a while back).
Although, like James, I don’t know what you do about it.
Eleven years later, I’m in pretty much the same position. Do I think Thomas probably rules the same way in the Trump case if his wife isn’t working on behalf of the January 6 protestors? Yes. Would I prefer not to have to wonder? Yes.
Ginni Thomas was working in politics, as legislative director for Congressman Hal Daub and as a lobbyist for the Chamber of Commerce, when she met and married Clarence Thomas. She was working in the Legislative Affairs Office of the United States Department of Labor when he was appointed to the Supreme Court. Her career was on a pretty strong trajectory. It’s quite reasonable to think that her next jobs, with Congressman Dick Armey and as a lobbyist with the Heritage Foundation, would have happened even if her husband weren’t a Supreme Court Justice. And she may well have started a lobbying firm of her own in 2009, having nearly three decades of high-level experience and connections.
But it’s also quite reasonable to wonder whether people hiring her are also trying to influence her husband. It’s the same line of inquiry conservatives raised about the Clinton Foundation: were people donating because it was doing great work? Or to buy influence with the Secretary of State and/or potential next President? More obviously, it’s why most of us were outraged by Trump properties raking in money during the Trump Presidency.*
It’s quite reasonable to demand that those who want certain high-powered policymaking jobs not only fully disclose their potential conflicts (and Clarence Thomas failed on that score with regard to his wife’s income for a decade) and even divest assets or put them into a blind trust. We’ve never figured out what to do, though, about the obvious conflicts that having a spouse potentially make money trading on the policymaker’s influence. It’s been an issue of occasional controversy going back at least as far as Bill Clinton’s 1992 Presidential run (Whitewater, cattle futures, etc.)* and yet we have made next to no progress on the issue in three decades.
My preference would be for the couples to take the highest road:
The spouses of other Justices have taken steps to avoid creating conflicts of interest in the first place. When Ruth Bader Ginsburg joined the U.S. Court of Appeals for the District of Columbia Circuit, her husband, Martin Ginsburg—then one of the country’s most successful tax lawyers—left his law firm and turned to teaching. After John Roberts was nominated to be a Justice, his wife, Jane Sullivan Roberts, retired from practicing law and resigned from a leadership role in Feminists for Life, an anti-abortion group.
There are a handful of jobs—President, Vice President, and Supreme Court Justice certainly among them—where it may be reasonable to demand that the holder be free from even the appearance of conflict regarding a spouse. But it’s a lot to ask.
*I’m not interested in rehashing any of those controversies here; fairly or otherwise, they raised similar issues.