The revelation this week that Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, attended the pro-Trump “Stop the Steal” rally that preceded the Jan. 6 riot at the Capitol has renewed questions about Clarence Thomas’s impartiality.
Critics say the new detail is just the latest example of Ginni Thomas’s political activity posing an ethically troubling overlap with her husband’s judicial position.
“Virginia Thomas should be able to back whatever causes motivate her. The problem is that Justice Thomas continues to participate in cases related to her political activities,” said Steven Lubet, a professor of legal ethics at Northwestern University Law School. “He is the one whose conduct should be questioned.”
Judges on lower federal courts are bound by a code of conduct that requires recusal for conflicts of interest, or even if their impartiality might be reasonably questioned. But Supreme Court justices are permitted to decide for themselves whether recusal is appropriate in a given case.
In Clarence Thomas’s three decades on the bench, he has never stepped aside from a case due to a real or perceived conflict of interest resulting from his wife’s political activities, according to a letter sent this month to him by several progressive groups, including the court expansion advocacy group Take Back the Court.
“It is striking that in more than 30 years on the Supreme Court you have never — not once — recused yourself from a case because of a conflict of interest presented by professional political activities of your wife, a prominent Republican strategist who has been involved in some of the most controversial matters to come before the Court,” the March 8 letter states.
The Supreme Court’s public information office did not respond to a request for comment.
The previously unknown detail about Ginni Thomas’s participation in the pro-Trump rally emerged from an interview she gave to the conservative media outlet The Washington Free Beacon.
She told the outlet she attended the Jan. 6 rally at the Ellipse but got cold and left before former President Trump took the stage at noon. Dubbed “Stop the Steal,” the event promoted Trump’s lie that he won the 2020 election, which fueled the deadly insurrection later that day.
“I was disappointed and frustrated that there was violence that happened following a peaceful gathering of Trump supporters on the Ellipse on Jan. 6,” Ginni Thomas told the outlet. “There are important and legitimate substantive questions about achieving goals like electoral integrity, racial equality, and political accountability that a democratic system like ours needs to be able to discuss and debate rationally in the political square. I fear we are losing that ability.”
Ethical scrutiny of the justice and his spouse has waxed and waned over the years. A prominent example arose from the court’s 5-4 ruling in Bush v. Gore that handed the 2000 presidential election to George W. Bush.
At the time that Clarence Thomas cast a decisive vote for Bush, Ginni Thomas worked at the Heritage Foundation, a conservative think tank, where she was recruiting personnel to staff a future Bush administration.
More ethical questions grew out of the Supreme Court’s review in 2017 of Trump’s policy banning inbound travel from several Muslim-majority countries. From 2017 to 2018, Ginni Thomas’s consulting firm received more than $200,000 from the Center For Security Policy, whose president filed an amicus brief in the case that urged the justices to uphold the ban.
When the case was decided in summer 2018, Clarence Thomas cast a decisive vote in the 5-4 ruling upholding the Trump administration’s travel restriction.
The latest entanglement to draw headlines related to the Jan. 6 pro-Trump riot and subsequent investigation by the House select committee.
In addition to attending the “Stop the Steal” rally, Ginni Thomas was one of roughly five dozen activists to sign a letter in December to top House Minority Leader Kevin McCarthy (R-Calif.) urging him to remove outspoken Trump critics Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.) from the Jan. 6 panel.
The following month, Clarence Thomas raised eyebrows as the only justice who indicated that he would have granted Trump’s request to block a trove of his administration’s records from being handed to the House committee investigating the circumstances of the Jan. 6 attack.
Critics say that in light of his wife’s political activities, the justice should have recused himself from that case and future matters tied to the Jan. 6 attack.
“The clear conflict of interest was driven home by the fact that you were the only member of the Supreme Court to side with Trump by publicly dissenting from the Court’s decision to allow the Committee to obtain the records in dispute,” read Take Back The Court’s letter sent to Clarence Thomas this month.
“That case is unlikely to be the last case related to the Jan. 6 insurrection that will come before the Court,” it continued. “We ask that you recuse yourself from any future involvement in any such cases.”
In the Washington Free Beacon article published Monday, Ginni Thomas pushed back on the notion that her political involvement has any bearing on her husband’s work.
“Like so many married couples, we share many of the same ideals, principles and aspirations for America,” she said. “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.”
But according to Gabe Roth, executive director of the left-leaning court-reform advocacy group Fix The Court, it would be fair to say that “a reasonable person might question Clarence Thomas’s impartiality” given what he described as a years-long pattern.
“I don’t think Ginni is the be all, end all of problems,” said Roth, an advocate for a code of conduct for Supreme Court justices. “But if it’s making folks pay closer attention to these issues, that might not be the worst thing, especially since we know Clarence is probably not going to change his tune on any of this.”