Ginni Thomas and a judicial ethics debate

Late last month, Rep. Alexandria Ocasio-Cortez, D-N.Y., called on Supreme Court Justice Clarence Thomas to resign. He should do so, the lawmaker said, in part because he had not recused himself from “matters involving his wife.”

The reference followed revelations of texts in which Virginia “Ginni” Thomas, a conservative activist with a consulting group, called the 2020 election “obvious fraud.” Those texts have fueled Democratic calls for Justice Clarence Thomas to step aside from ruling on any cases related to last year’s Jan. 6 Capitol riot. The controversy has renewed the debate over a code of ethics binding Supreme Court justices.

Former White House chief of staff Mark Meadows turned over thousands of personal texts involving the events of Jan. 6 before halting his cooperation with the House committee investigating the riot. Within the reams of disclosed content, 29 messages surfaced from Ginni Thomas. The series of texts, most sent before Jan. 6, urged Meadows to help former President Donald Trump “stand firm,” resist election fraud, and coordinate legal strategies to contest the presidential election results. They called the 2020 election “the greatest heist in our history.” Ginni Thomas attended the Save America rally just south of the White House early on Jan. 6 but left before Trump took the stage. She has since clarified she had no leadership or organizational role in that event.

Ginni Thomas’ consulting organization has served a variety of conservative groups. It is not uncommon for spouses of justices to retain their careers while their family members deliver decisions on the nation’s highest court. The late Justice Ruth Bader Ginsburg, for example, was married to a prominent lawyer whose firm represented parties before the Supreme Court. But Ginni Thomas’ consultancy and lobbying have sparked national scrutiny of her husband’s judicial record.

Earlier this year, Justice Thomas delivered the only dissenting opinion in a 8-1 decision to allow the House committee access to White House records from Trump’s final months in office. Critics have questioned whether he did so to protect his wife.

Unlike most courts in the country, the Supreme Court does not have a binding ethics code or stringent requirements for recusal. However, the justices typically consult the code of conduct that applies to lower court judges, even if it is not enforceable against them. According to federal law, justices should disqualify themselves if impartiality can reasonably be questioned. But the justices themselves decide whether the law’s stipulation applies to them.

In 1993, seven justices, including Thomas, signed a policy saying they would only recuse if a family member was lead counsel in a case or if the outcome would financially affect them. “We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution,” the justices wrote. “Even one unnecessary recusal impairs the functioning of the Court.”

Ginni Thomas originally founded Liberty Consulting, her second lobbying group, in 2010 to build conservative coalitions through her Washington connections. She told The Washington Free Beacon she consulted with U.S. Court of Appeals Judge Laurence Silberman for ethics guidance over what political activity she could do, claiming he told her advocacy work was fine as long as she didn’t take a position on a pending Supreme Court case.

“Like so many married couples, we share many of the same ideals, principles, and aspirations,” Ginni Thomas told the Beacon. “But we have our own separate careers, and our own ideas and opinions, too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”

American University law professor Amanda Frost says the situation proves the need for more transparency in the nation’s highest court. With public opinion of the Supreme Court in decline, she said it’s time for the court to establish a code of ethics and explain recusal decisions.

“When an undisclosed potential conflict comes out later, it undermines the court’s integrity and may undermine the results in the case,” Frost said. “It would make a lot of sense for justices to be more transparent and form a process.”

If the Supreme Court does not create an ethics code, Frost argues Congress should. Sen. Elizabeth Warren, D-Mass., and 23 other Democratic legislators sent a letter to Chief Justice John Roberts urging him to pursue Supreme Court reform. Last week, Sen. Sheldon Whitehouse, D-R.I., co-introduced the Twenty-First Century Courts Act to force the justices to create an ethics code and raise recusal standards.

But Russell Wheeler of the Brookings Institution says critics are placing too much weight on code of conduct reform, which would guide but not force justices to recuse themselves.

“The code of conduct is purely advisory,” Wheeler said. “Recusal is a judicial decision and governed by statute. So whether they have a code of conduct or not is not going to make much difference.”

Justice Thomas has not addressed the controversy. Since the 1990s, he has recused himself 54 times for conflicts of interest, some involving his son. When critics insisted he recuse himself from a key Obamacare case in 2011 due to his wife’s lobbying work, he refused.

At a Federalist Society event that year, he said opponents seemed determined to undermine the institution of the court by removing him. Thomas did not specifically respond to accusations that his rulings were influenced by his wife. But he did point out Ginni in the audience and praise her work.

“We are equally yoked, and we love being with each other because we love the same things. We believe in the same things,” he said. “So, with my wife, and with the people around me, what I see, I’m reinforced that we are focused on defending liberty. So, I admire her and I love her for that because it keeps me going.”