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Saturday, March 26, 2022

Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him? The nature of the text messages was enough to require recusal, legal experts said. But the Supreme Court has traditionally left such decisions to the discretion of the justice in question.

Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him?

The nature of the text messages was enough to require recusal, legal experts said. But the Supreme Court has traditionally left such decisions to the discretion of the justice in question.

The congressional committee investigating the Jan. 6, 2021, Capitol attack  obtained text messages between Ginni Thomas, the wife of Justice Clarence Thomas, and a former White House chief of staff.
Drew Angerer/Getty Images

“WASHINGTON — The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.

It is one thing, experts in legal ethics said on Friday, for the spouse of a Supreme Court justice to express political views, even ones shot through with wild conspiracy theories. That may not by itself require the justice’s recusal from cases touching on those views.

But the text messages from Ms. Thomas, a longtime conservative activist who goes by Ginni, revealed something quite different and deeply troubling, experts said.

The messages from Ms. Thomas to Mark Meadows, President Donald J. Trump’s chief of staff, sent during and just after the fraught weeks between the 2020 presidential election and the Jan. 6 attack on the Capitol, demonstrated that she was an active participant in shaping the legal effort to overturn the election.

“I’m not sure how I would have come out if we just had a lot of texts from her saying that ‘this is terrible,’ said Amanda Frost, a law professor at American University in Washington.

“But she wasn’t doing just that,” Professor Frost said. “She was strategizing. She was promoting. She was haranguing.”

The texts were among about 9,000 pages of documents that Mr. Meadows turned over to the congressional committee investigating the Capitol attack. Democrats immediately seized on the disclosure to draw attention to the conflicts they said were presented by Ms. Thomas’s political activities and to press Justice Thomas to recuse himself from cases concerning the election and its aftermath. Senator Ron Wyden, Democrat of Oregon, said that Justice Thomas’s “conduct on the Supreme Court looks increasingly corrupt” and that he had been “the lone dissent in a case that could have denied the Jan. 6 committee records pertaining to the same plot his wife supported.”

Justice Thomas, Mr. Wyden said, “needs to recuse himself from any case related to the Jan. 6 investigation, and should Donald Trump run again, any case related to the 2024 election.”

But Justice Thomas, who was released from the hospital on Friday after being treated for the last week for flulike symptoms, has long been a pillar of the conservative establishment. Republicans, even those who have distanced themselves from Mr. Trump and the more extreme wing of their party, showed no interest in pressuring him to recuse himself.

Ms. Thomas’s text messages were heated and forceful, urging Mr. Meadows to pursue baseless legal challenges. “Biden and the Left is attempting the greatest Heist of our History,” one said.

Ms. Thomas’s activities should have prompted Justice Thomas to disqualify himself from cases related to them, said Stephen Gillers, a law professor at New York University.

“He had an obligation not to sit in any case related to the election, the Jan. 6 committee or the Capitol invasion,” he said.

Professor Frost agreed that the situation was “an easy case.”

“When your spouse is conversing with people who have some control over litigation to challenge an election,” she said, “you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”

But Justice Thomas did participate in a ruling in January on an emergency application from Mr. Trump asking the court to block release of White House records concerning the attack on the Capitol. The court rejected the request, in a sharp rebuke to the former president.

Only Justice Thomas noted a dissent, giving no reasons.

He also participated in the court’s consideration of whether to hear a related appeal, one in which Mr. Meadows filed a friend-of-the-court brief saying that “the outcome of this case will bear directly” on his own efforts to shield records from the House committee investigating the attacks beyond those he had provided.

The Supreme Court last month refused to hear the case, without noted dissent. There was no indication that Justice Thomas had recused himself.

In December 2020, around the time of the text messages, Justice Thomas participated in a ruling on an audacious lawsuit by Texas asking the court to throw out the election results in four battleground states. The court rejected the request, with Justices Thomas and Samuel A. Alito Jr. issuing a brief statement suggesting the majority had acted too soon in shutting the case down.

In February 2021, Justice Thomas addressed election fraud in a dissent from the Supreme Court’s decision to turn away a challenge to Pennsylvania’s voting procedures.

Oliver Contreras for The New York Times

“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” he wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.”

Justice Thomas did not respond to a request for comment on Friday.

All federal judges, including Supreme Court justices, are subject to a federal lawon recusal. 

The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Judging by the nature of the text messages and the uproar over them, that provision alone is enough to require Justice Thomas’s recusal, legal experts said.

A more specific provision concerning relatives, including spouses, might also apply to his situation. Judges should not participate, the law says, in proceedings in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”

Professor Gillers said the word “interest” was the key.

“By writing to Meadows, who was chief of staff and active in the ‘Stop the Steal’ movement, she joined the team resisting the results of the election,” Professor Gillers said. “She made herself part of the team and so she has an interest in the decisions of the court that could affect Trump’s goal of reversing the results.”

Capitol Riot’s Aftermath: Key Developments

Virginia Thomas’ text messages. In the weeks before the Jan. 6 attack, Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, sent several text messages imploring Mark Meadows, President Donald J. Trump’s chief of staff, to take steps to overturn the vote.

New York Times Magazine investigation last month revealed new details of Ms. Thomas’s role in efforts to overturn the election from her perch on the nine-member board of CNP Action, a conservative group that helped advance the “Stop the Steal” movement, and in mediating between feuding factions of organizers “so that there wouldn’t be any division around Jan. 6,” as one organizer put it.

In an interview this month with The Washington Free Beacon, a conservative publication, Ms. Thomas said that she and her husband kept their professional lives separate. “Clarence doesn’t discuss his work with me,” she said, “and I don’t involve him in my work.”

But the recusal law required Justice Thomas to inquire about his wife’s activities, Professor Gillers said.

“He had an obligation to ask her what she’s doing,” he said. “He cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”

It is one thing for a law to be on the books, and another to enforce it.

There may be questions about the constitutionality of the recusal law, as least as it applies to Supreme Court justices. In his 2011 annual report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. wrote that “the limits of Congress’s power to require recusal have never been tested.”

But he added that the justices followed the law, in their own way. The Supreme Court has left recusal decisions to the discretion of the justice in question, at odds with the adage that no person should be a judge in his or her own case.

Chief Justice Roberts wrote that the justices could be trusted to make the right calls.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Recusal decisions by lower-court judges are subject to judicial review, he wrote. That is not true at the Supreme Court.

“There is only one major difference in the recusal process: There is no higher court to review a justice’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there be only ‘one Supreme Court.’ ”

That also means, he added, that recusal at the Supreme Court is particularly problematic.

“If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place,” he wrote. “But the Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the court must sit without its full membership.”

“A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” he added. “Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”

T.J. Kirkpatrick for The New York Times

Letting other justices second-guess their colleagues’ recusal decisions could turn ugly, Chief Justice Roberts wrote.

“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote. “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”

At her Supreme Court confirmation hearings this week, Judge Ketanji Brown Jackson said she would take recusal obligations seriously. If she is confirmed, she said, she planned to recuse herself from a challenge to Harvard’s race-conscious admissions program in light of her service on one of the university’s governing boards.”

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