By David ThorntonJustice Clarence Thomas went into the hospital last week. Over the weekend, the Supreme Court released a statement that Thomas was being hospitalized for “flu-like symptoms,” but little information on his status has come out since then except that his illness is related to an infection and is not COVID. The justice has missed three days of oral arguments at this point, but his problems just got worse.
On Thursday, the news broke that Thomas’s wife, Ginni, had texted then-Chief of Staff Mark Meadows 29 times after the 2020 election and urged him to overturn the election results. CNN first reported that the January 6 commission was in possession of the texts and the Washington Post described their contents.
On November 10, shortly after Biden was projected to be the winner, Ginni texted Meadows, “Help This Great President stand firm, Mark!!!… You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
On November 24, Meadows texted, “This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing [sic]. The fight continues. I have staked my career on it. Well at least my time in DC on it.”
Ginni responded to that text, “Thank you!! Needed that! This plus a conversation with my best friend just now… I will try to keep holding on. America is worth it!”
It isn’t clear whether Clarence Thomas was the best friend that Ginni referred to in the text, but it is not an unreasonable assumption.
So far, the texts do not directly implicate Justice Thomas in any wrongdoing, but they do raise questions about undue influence and whether the justice should have recused himself from election cases coming before the Court. At the very least, the revelations threaten to further undermine public faith in the Supreme Court.
Thomas’s wife, Virginia (but commonly called “Ginni”), is a longtime political activist who moved to Washington in 1981 to work for Congressman Hal Daub, a Nebraska Republican. She married Justice Thomas in 1987 when he was already a member of the Supreme Court. Her activism has been controversial ever since, but there are no laws or rules against Supreme spouses engaging in political activity.
The plot thickened on March 15 when Ginni revealed that she had attended the infamous Stop the Steal rally. The Washington Free Beacon reported that she had denied being an organizer of the rally, and added that she claimed to have left early after getting cold.
So far, there is no evidence of a crime being committed by Ginni, but the revelation of her texts lobbying Mark Meadows lead to legitimate questions. Was Ginni also pressuring Justice Thomas to vote with the MAGA side in the cases coming before the Supreme Court? Could Clarence Thomas be expected to maintain his objectivity if his wife is badgering him about election conspiracy theories at home?
Because much of the Supreme Court’s activity is opaque to the public, we don’t know what actions Justice Thomas was taking behind closed doors. What we do know is that the Supreme Court rejected applications from Trump allies to hear a handful of cases about the 2020 election. The votes on those decisions were not always public but we do know that on at least one case, Justice Thomas offered a lengthy dissent from denial, meaning that he thought the Court should have heard the case.
In the rejection of Republican Party of Pennsylvania v. Degraffenreid, Thomas wrote in a dissent, “These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”
In this case, Thomas was not the only dissent. Justice Alito wrote a separate dissent, which was joined by Justice Gorsuch.
In another case, however, Justice Thomas was the lone dissent. Back in January, the Supreme Court ruled on a Trump bid to protect White House documents from the January 6 committee. The order refusing Trump’s request was not signed, but Justice Kavanaugh, a Trump appointee, wrote a two-page explanation, which explained, “To be clear, to say that a former President can invoke the privilege for Presidential communications that occurred during his Presidency does not mean that the privilege is absolute or cannot be overcome.”
Thomas did not pen a dissent, but the order simply noted, “JUSTICE THOMAS [capitalization in the original] would grant the application.”
There is a possibility that Ginni’s texts were revealed through the information released by the former Trump Administration due to the court order. We don’t know this for certain, however. It is probably more likely that they came from information handed over by Mark Meadows before he stopped cooperating with the commission in December 2021.
Either way, if Clarence Thomas knew that his wife was texting with Meadows, a party to the case, about matters before the Court, it seems that it would have been a clear conflict of interests. Justice Thomas should have recused himself from the cases where his wife was directly involved.
Further muddying the waters is that John Eastman, Trump campaign lawyer and author a memo outlining the plot to overturn the election, was a former clerk for Justice Thomas. Eastman was involved in many of the election lawsuits. How close does a relationship have to be before a justice recuses himself? That’s a rhetorical question since there is no rule. It is up to each individual justice.
So we have evidence that the wife of a Supreme Court justice was taken in by conspiracy theories to the point where she lobbied the White House Chief of Staff to act to throw out election results that she didn’t like. There is also circumstantial evidence that she may have badgered her husband to rule in Trump’s favor in cases that came before the Court. The big question is whether Thomas’s dissents were influenced by Ginni’s advocacy or whether they represented his own thoughts and beliefs. There is no way to know the answer to this question.
What should we do now? We should keep investigating to find out whether Ginni lobbied her husband the same way she lobbied Mark Meadows. The texts that we know about may just be the tip of the iceberg.
And what should we do if we find evidence that Justice Thomas was improperly influenced and did not recuse himself from the cases? There is only one way to punish a Supreme Court justice and that is impeachment.
Impeachment of a Supreme Court justice is not unprecedented. Associate Justice Samuel Chase is the only justice to have been impeached in US history. Chase was impeached by the House in 1804 on charges of “refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases” per the Senate website. He was acquitted by the Senate and remained in office.
The Chase case underscores the current difficulty with Thomas. Republicans have shown a refusal to hold their own accountable and Clarence Thomas is a Republican appointee with a conservative voting record. He would be replaced by a Biden appointee. Justice Thomas is not going to be removed from office as long as it requires even one Republican vote.
If the case builds against Thomas, it might be worthwhile to impeach him in the House as a reputational punishment, but we are not anywhere close to that point yet.
For a man who values his reputation and his place in history, the prospect of impeachment might be an incentive to resign. This did not work for Donald Trump, but it has worked for other public officials in the past. Richard Nixon is a notable example.
In the end, the question may be moot. At 73 and currently in poor health, Justice Thomas may decide that his time on the Court is at an end both to avoid the controversy caused by his wife and because of legitimate health concerns. Such a move would be better for the country than another impeachment battle.
At present, there is cause for concern about the relationship between Justice Thomas and his wife as it relates to his duties on the Court. But so far, the case against the Thomases is not a slam dunk for either side. There is the appearance of possible impropriety but no conclusive evidence.
While Supreme Court spouses don’t give up their right to hold political opinions or engage in activism, the push to overturn a legitimate election after the fact is not typical political activism. Given the consequences of such an action, which include a possible civil war, there is absolutely a reason to investigate the matter further.
There is also a good reason for Congress to make sure that we are not faced with other such conflicts of interest in the future. Laws are often written based on the lowest common denominator of society and that would be the case here. Throughout our history, we’ve never had a Supreme spouse who urged her husband to find a reason to throw out an election. We don’t know that such a conflict happened in this case, but we should make sure that it doesn’t happen in the future.
The Supreme Court could codify a rule that stipulates when justices must recuse themselves. Congress could consider enacting requirements that the immediate family of a justice not be employed or engaged in political activism to maintain the justice’s objectivity. At the very least, Congress could refuse to confirm justices whose spouses are political activists.
I don’t believe this idea of a law is a great one. It may not even be constitutional. However, when people like Ginni Thomas behave irresponsibly and unethically, it often means that the rules get more restrictive for the rest of us. Rules are there to provide a boundary for the minority that can’t be trusted to police their own behavior.
Ginni Thomas’s actions and activism have damaged the credibility and reputation of the Supreme Court. Justice Thomas became complicit when he refused to recuse himself in cases related to her activism. But that wasn’t his first error.
Clarence Thomas’s original sin was in not avoiding the appearance of impropriety when he first married Ginni. He should have insisted that she stop her activism and find a job outside of politics. In that lapse of judgment, Thomas himself has damaged his institution. For that reason, he should resign.
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