They don’t have to follow the rules:
On Wednesday, we learned that Supreme Court nominee Ketanji Brown Jackson would recuse herself from a major case involving Harvard University, where she serves on the governing board. On Thursday, we learned that Justice Clarence Thomas’s wife played an even more significant role in events pertaining to cases he has declined to recuse himself from.
The Post’s Bob Woodward and CBS News’s Robert Costa report that Virginia Thomas, who goes by “Ginni,” exchanged at least 29 text messages with then-White House chief of staff Mark Meadows, as both of them strategized about overturning the 2020 election result. It’s the first time we have gotten direct evidence that Ginni Thomas advised the White House in this effort.
Why is that significant? And what new light does it cast on Justice Thomas’s decision not to recuse himself from 2020 election cases?Advertisement
These questions have long lingered around Thomas, given his wife’s prominence in Republican and conservative politics. He has never recused himself from a case because of her. But this case presents perhaps the most controversial intersection, to date, between his wife’s work and his actions on the court. (Asked about the matter on Friday, House Minority Leader Kevin McCarthy (R-Calif.) declined to call on Thomas to recuse himself from Jan. 6 cases.)
We know considerably more now than we did when these questions were first raised about Thomas’s non-recusal. The Post’s Michael Kranish in late January noted that Ginni Thomas had signed a letter in December 2021 attacking the House Jan. 6 committee. Shortly afterward, her husband became the only justice to dissent when the court granted access to Trump’s White House records. Ginni Thomas has also since confirmed she attended the “Stop the Steal” rally in Washington that preceded the Jan. 6 insurrection. (She said she left early because it was cold, and that she didn’t play a part in organizing it.)
It now appears Justice Thomas voted against disclosing information about an effort his wife was directly engaged in. It’s also plausible (though not yet established) that he voted against disclosing his wife’s contacts with the White House — whether knowingly or not.
The texts were on Meadows’s personal phone, and they were among the more than 2,300 texts he voluntarily shared with the committee before he stopped cooperating with it. In other words, these 29 texts weren’t among the materials Justice Thomas voted against giving the committee. (Thomas was hospitalized this week for an infection; the Supreme Court reported that he was discharged Friday morning.)Advertisement
But the text messages indicate that Ginni Thomas’s contact with the White House went beyond these texts to Meadows’s personal phone.
As Woodward and Costa report:Meadows might not have been Thomas’s only contact inside the Trump White House that week. On Nov. 13, she texted Meadows about her outreach to “Jared,” potentially a reference to Jared Kushner, the president’s son-in-law and senior White House adviser. She wrote, “Just forwarded to yr gmail an email I sent Jared this am. Sidney Powell & improved coordination now will help the cavalry come and Fraud exposed and America saved.” The messages provided to the House select committee do not show a response by Meadows.Kushner did not respond to a request for comment.
It’s entirely possible that whatever communications Ginni Thomas had with Kushner or anyone else in the White House didn’t involve official White House accounts. Kushner was among the top White House aides who the House Oversight Committee said in 2019 had used personal email accounts for official business (despite Trump having decried Hillary Clinton’s use of a private email server). And aides often use personal accounts for political work. It would also seem advisable for those involved in an effort to subvert democracy to use personal accounts, for increasingly obvious reasons.
But it is also possible that such communications found their way to official White House accounts.Advertisement
Meadows’s emails to Justice Department officials sharing various election conspiracies often came from his official White House account, for example. But the chains began by Meadows sending something to his White House account from another email address — apparently a personal one. It seems likely that he forwarded the emails to his White House account because he didn’t want to email DOJ officials from a personal account. But it raises questions about what the email chains, handed to the Jan. 6 committee by the Supreme Court, might contain.
And even if those emails don’t contain direct communications with Ginni Thomas, they could contain references to her actions, or details about events that involved her.
Regardless of whether Justice Thomas actually wound up voting against the disclosure of any communications his wife had with the White House, it certainly ratchets up questions about conflicts of interest. Supreme Court justices have sole authority to make recusal decisions, but the standard for federal judges recusing themselves is if their “impartiality might reasonably be questioned.”Advertisement
Thomas, as Kranish wrote, has generally considered his wife’s work in causes related to Supreme Court cases to be a nonissue — or at least not rising to that standard.
He did recuse himself in the mid-90s from a case involving Virginia Military Institute, because his son attended the school. But that was one of just 32 times he has recused himself in 28 years on the court, according to the nonpartisan advocacy group Fix the Court. As with other justices, most of his recusals came early in his tenure, because of conflicts with his previous work. But Thomas has recused himself far fewer times than the average justice on a court that generally features around 200 recusals per term from the nine justices.
Perhaps the most analogous recusal question involving Thomas came in 2011, when 74 House Democrats wrote a letter calling on him to recuse himself from a key Obamacare case. They cited his wife’s work lobbying against the law. But Ginni Thomas wasn’t involved in any group that was actually party to the lawsuit. Justice Thomas spoke out at the time, saying his critics “seem bent on undermining” the institution of the court.Advertisement
This latest situation seems different: This time, she appears to have engaged directly with key figures at the center of the Jan. 6 committee’s work — and on the topic at hand.
Compare that with Jackson’s recusal in the affirmative action case, which is similar to how Thomas handled the VMI case. Legal experts said she could have opted not to recuse if she felt she played no role in the policy — and there is no evidence that she played a role in it — but her tie to Harvard certainly raised the possibility that her “impartiality might be reasonably questioned.”
At the very least, Thomas opted not to recuse himself from a case that could reflect quite poorly on his spouse. The text messages revealed by Woodward and Costa suggest his wife was not only trafficking in bizarre conspiracy theories about the election, but was strategizing with White House officials about the very type of legal claims now at the center of the Jan. 6 committee’s investigation. And that investigation is one the committee has said could reveal something amounting to a criminal conspiracy.
Ginni Thomas’s lawyer, George Terwilliger III, maintained Thursday that “nothing about the text messages presents any legal issues.” That might be the case, but they certainly present plenty of other issues.
I just heard a TV lawyer saying that Supreme Court justices are above the law. Apparently that’s so.
The only people who have influence over him are his fellow justices and I’m not especially hopeful that they will do anything to rein him in on these cases. It’s insane that his wife is involved in these extremist causes but we’ve known that for years. And we also know that if any liberal justices’ spouses were involved in far left causes they would be vilified in the most vicious manner and probably impeached. But that’s how these things go.