Ethics experts see Ginni Thomas’s texts as a problem for Supreme Court

WASHINGTON - Justice Clarence Thomas checked out of the hospital Friday after a weeklong stay and walked into the latest ethics controversy about the intersection of his Supreme Court duties and his wife’s political activism.

Democratic lawmakers and many legal ethicists said they were shocked by revelations that Virginia Thomas, known as Ginni, repeatedly pressed White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 presidential election, at a time when President Donald Trump was saying he would challenge the results at the Supreme Court.

The Washington Post and CBS News jointly reported Thursday that in 29 text messages exchanged between Ginni Thomas and Meadows, she advocated for certain legal strategies, urged him to continue to dispute the election results and asserted that Joe Biden did not win the election.

“Help This Great President stand firm, Mark!!!” Ginni Thomas texted Meadows in November, days after the election. “. . . 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.”

Democrats on Capitol Hill said they were outraged by the messages and Justice Thomas’s participation in some of the election-related cases that reached the high court, none of which were decided in Trump’s favor. One of the strongest reactions came from Sen. Ron Wyden, D-Ore.

“Justice Thomas’ conduct on the Supreme Court looks increasingly corrupt,” Wyden said in a news release. “Judges are obligated to recuse themselves when their participation in a case would create even the appearance of a conflict of interest. A person with an ounce of common sense could see that bar is met here.”

[Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show]

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a law professor and judicial ethics expert at Northwestern University.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack the U.S. Capitol by hundreds of Trump’s supporters.

“It is so stark. You have the wife of a Supreme Court justice advocating for, effectively, an insurrection, on a matter in which, at least in part, could end up before the court,” he said. “That’s pretty dramatic.”

Congressional Republicans came to Clarence Thomas’s defense.

“Justice Thomas is a great American and an outstanding Justice,” Senate Minority Leader Mitch McConnell, R-Ky., said in a statement. “I have total confidence in his brilliance and impartiality in every aspect of the work of the Court.”

At the House Republicans’ retreat in Florida, House Minority Leader Kevin McCarthy, R-Calif., said Thomas should not automatically recuse himself from any Jan. 6 cases. “I think Justice Thomas could make his decisions like he’s made every other time - it’s his decision based upon law,” McCarthy said. “If you’ve spent any time studying the Supreme Court justice, he’s the one who studies correctly.”

Rep. Jim Jordan, R-Ohio - who McCarthy said will become chair of the House Judiciary Committee if Republicans regain the majority in this year’s midterm elections - said he “totally” agreed with McCarthy’s assessment.

Both men have been at odds with the congressional committee investigating the Capitol riot - each spoke to Trump that day.

Adam White, a senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court, said that, in general, previous criticisms of Ginni Thomas’s political work, as well as calls for the justice to recuse himself from participating in cases, were overstated and unfair. She should be allowed to have her own career, White and others have reasoned.

But, he said, the recent disclosures are “somewhat different because they pertain to a specific course of events that did give rise to Supreme Court litigation.”

“This does raise real questions about the need for Justice Thomas to recuse from future cases related to the Jan. 6 insurrection,” White said.

Ginni Thomas’s text messages, which do not directly reference her husband or the Supreme Court, illustrate her access to Trump’s inner circle to promote and her efforts to guide the president’s strategy to overturn the election results. Meadows indicated in his responses that he was grateful to receive her advice.

Thomas has publicly denied any conflict of interest between her activism and her husband’s work on the Supreme Court. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work,” she said in an interview with the Washington Free Beacon, a conservative news outlet, for an article published March 14.

In February 2021, when the Supreme Court rejected challenges filed by Trump allies to election procedures, Justice Thomas wrote in a dissent that it was “baffling” and “inexplicable” that the majority would not hear the cases in order to provide states with guidance for future elections.

In January, he was the only justice to note his dissent when the court turned down Trump’s request to block the National Archives from sending White House documents requested by the House committee as part of its investigation. The text messages revealed Thursday did not come from those documents but were turned over to the committee by Meadows, before he ceased cooperating with it.

Thomas “did not explain his reasoning” in the case in which he indicated he would have granted Trump’s request, Sen. Tim Kaine, D-Va., tweeted Friday. “We need answers.”

Stephen Gillers, an ethics expert at New York University Law School, said Justice Thomas had an obligation under the recusal statute to know about his wife’s activities. He can’t claim ignorance about her work, Gillers said, or intentionally avoid becoming informed about her actions.

“It was his job to ensure the public would not question his impartiality” in cases involving the 2020 election and Congress’s investigation of the attack on the Capitol, Gillers said. “The public would suspect that the Thomases talked about the post-election challenge.”

Gabe Roth of the Supreme Court watchdog group Fix the Court said Justice Thomas’s continued participation in cases related to overturning the election would “further tarnish the court’s already fading public reputation.”

“Justice Thomas must recuse from any Supreme Court cases or petitions related to the Jan. 6 Committee or efforts to overturn the election,” he said.

Virelli said he would not go that far.

“If any future cases involve any communication from Ginni Thomas as evidence or involve her as a witness, all of those things should require immediate recusal from Justice Thomas, and I think it’s a fairly simple question,” he said. “It becomes more complicated when you step back a level.” For instance, he said he did not think a case involving prosecution of someone who broke into the Capitol on Jan. 6 would require recusal.

Amanda Frost, a law professor and judicial ethics expert at American University, said the court should put in place a new system for the justices to review one another’s recusal decisions and require them to explain their decisions to the public.

If the court can’t police itself, she said, “Congress is going to have to step in to protect the integrity, legitimacy and reputation of the court.”

Last month, dozens of judicial ethics experts sent Chief Justice John Roberts a letter renewing a request for a code of conduct particular to the Supreme Court.

They noted that three years ago, Justice Elena Kagan told a congressional committee that the justices were “studying the question of whether to have a Code of Judicial Conduct that’s applicable only to the United States Supreme Court” and that it is “something that’s being thought very seriously about.”

But there has been nothing on the matter since. “We prefer that the Supreme Court draft a Code of Conduct and avoid the weighty questions that might arise if Congress imposed one,” the letter said.

Roberts in his year-end message about the state of the judiciary said such decisions should be made by that branch alone.

Justices are reticent to criticize one another and are equals on the court who make their own decisions. Roberts has no authority to force change. But Roth said that because the chief justice sees himself as the principal guardian of the court’s public image, he should take advantage of his position by speaking out.

Roberts did not respond to an inquiry about the Thomas situation or the status of the conduct code, nor have the Thomases commented.

Thomas was released from Sibley Memorial Hospital in Washington on Friday morning after a stay of nearly a week to treat an infection, the court’s press office said.

Thomas, 73, was admitted March 18, complaining of flu-like symptoms. The court said in a news release Sunday night that he had been diagnosed with an infection and was being treated with intravenous antibiotics.

A court spokeswoman said that Thomas had been vaccinated and boosted against the coronavirus and that his illness was not related to covid-19.

Thomas is the court’s longest-serving member, chosen in 1991 by President George H.W. Bush. He is also its second-oldest after Justice Stephen Breyer, 83, who plans to retire at the end of the term.

Justices decide for themselves how much health information they will release to the public, and there had been no additional guidance since Sunday until Friday’s brief notice from Supreme Court Public Information Officer Patricia McCabe. “Justice Thomas was discharged from the hospital earlier today,” she said in a release emailed to reporters.

There was no indication whether Thomas would rejoin his colleagues on the bench Monday, when they begin three days of oral arguments.

The Washington Post’s Marianna Sotomayor in Ponte Vedra Beach, Fla., and Mike DeBonis in Washington contributed to this report.