Justice Thomas hasn’t violated the Supreme Court’s ethical rules.
Justice Thomas hasn’t violated the Supreme Court’s ethical rules.
W e return yet again to the latest in a long train of left-wing efforts to get rid of Justice Clarence Thomas and his inconvenient insistence on adhering to the Constitution. This time, the critics claim that Thomas should have recused himself from two cases before the Court because of his wife’s activities — the Trump v. Hawaii case, in which his wife did paid consulting work for an organization that filed an amicus brief in the case, and Trump v. Thompson, a case involving claims of executive privilege over documents sought by the House January 6 committee from Mark Meadows and other aides to Donald Trump. The critics, however, fail to grapple seriously with the Supreme Court’s rules and precedential standards for a justice recusing from cases when he or she is accused of an actual or perceived conflict of interest.
Recusal demands targeting conservative justices have become a common weapon aimed, not at upholding the Supreme Court’s ethical standards, but at delegitimizing its rulings. The desperation of Democrats and progressives over the Court’s direction has mounted since 2016, and it is approaching fever pitch as the Court considers whether to overturn Roe v. Wade. Thomas’s enemies have gone into spasms of feverish fury. Alexandria Ocasio-Cortez: “Clarence Thomas should resign. If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.” Ted Lieu: “The issue is not the crazy sh** that Ginni Thomas engaged in. It’s the coverup by Supreme Court Justice Clarence Thomas.”
Joe Biden had an even more bizarre answer when asked whether Thomas should recuse himself from any future cases involving January 6 or Donald Trump: “I’d leave that to two entities. One, the January 6 committee and two, the Justice Department. That’s their judgment, not mine, to make.” In no possible set of facts does a congressional committee or Merrick Garland’s arch-partisan Justice Department get to dictate recusal decisions to a Supreme Court justice. But then, what does Joe Biden know?
Justice Thomas’s wife Ginni has, undoubtedly, created some public headaches for her husband, and some of her actions would raise serious questions if she, not her husband, were holding or seeking public office. It is possible that Justice Thomas may face a genuinely required recusal sometime in the near future. But under the well-worn standards, he has not been required to recuse in the cases thus far. He has done nothing wrong as a judge. Once you understand the rules, it is clear that the only legitimate complaint is that Thomas ought to be more diligent in filing financial-disclosure forms that fully reflect his wife’s business income.
The Duty to Sit
Supreme Court justices are governed by the same general principles as any other judge, but not by all the same rules, and their duties are different. Federal district and appeals judges are governed by a code of conduct passed by the U.S. Judicial Conference, and they are subject to supervision. Supreme Court justices are not, because they have no superiors in the judiciary and because they occupy a position constitutionally coequal with the president and Congress. But the justices are not lawless.
The rules for when Supreme Court justices must recuse themselves from a case due to a conflict of interest or the appearance of impropriety are legal, not political. They are made by Congress. As the Supreme Court noted in Liteky v. United States (1994), “Required judicial recusal for bias did not exist in England at the time of Blackstone,” so Congress began legislating in the area as far back as 1792 to prevent district-court judges from trying cases in which they had a conflict of interest.
The current recusal statute is 28 U.S.C § 455, which dates to 1948 but was significantly expanded in 1974 to offer specific guidance on particular situations requiring recusals. It applies to all federal judges, and explicitly includes the justices of the Supreme Court, as its 1821 predecessor did not. The statute allows a judge who discovers a financial conflict after investing significant time in a case to divest of the financial interest rather than drop the case. That is not directly relevant to Justice Thomas’s situation, or typically to the situation of any Supreme Court justice, but it reflects a congressional policy choice not to be blindly literal about recusals.
There is a reason for that, and a reason for the other limits on recusals, and it applies with particular force to Supreme Court justices. Judges in lower courts are interchangeable; it is no big deal to recuse and hand the case off to another judge, unless the judge with the conflict has become indispensable by virtue of putting a lot of time into a case. But Supreme Court justices have a long-recognized “duty to sit” if they possibly can hear a case, because they cannot be replaced, and a recusal can result in a 4–4 tie. As Chief Justice William Rehnquist once wrote, there is “a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Ethical standards drafted under the leadership of Chief Justice William Howard Taft added that judges in general “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety.” As Justice Stephen Breyer has said:
If you’re in a court of appeals and you’re uncertain, you know, it’s a sort of borderline, take yourself out of it. Because there are a lot of other judges who can step in. [But on the Supreme Court,] if you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.
In one notorious case decided a few years before the 1948 version of Section 455, the entire Supreme Court recused itself from an antitrust lawsuit against Alcoa, because all the justices owned stock in the company. That is not an ideal situation.
Appearance and Reality
Section 455(a) begins with a general but vague rule: “Any justice . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The rule is not as sweeping as it sounds. Significantly, the question is when a judge’s impartiality would “reasonably” be questioned, rather than requiring automatic disqualification the instant a judge has some possible reason for partiality that could be seized upon by a hostile critic. The standard is an objective “reasonable man on the street” test.
As the Court observed in Sao Paulo St., Federative Rep., Brazil v. Am. Tobacco (2002), what matters is what “a reasonable person, knowing all the circumstances” would consider an appearance of conflict. In Sao Paulo, a judge’s name had erroneously been listed on an amicus brief in a prior case; the Court held that, for purposes of recusal, the judge would not be treated as having actually filed the amicus brief, even though he appeared to have filed it, because the listing of his name was a mistake.
Thus, a justice does not have to recuse because someone could speculate that facts might exist that create a conflict, and a justice does not have to recuse because an observer who was misinformed about the facts would think the justice had a conflict — not even if the observer is under a reasonable misimpression. Only the actual facts matter.
Both Chief Justice William Rehnquist, in U.S. v. Microsoft (2000), and Justice Antonin Scalia, in Cheney v. United States District Court for the District of Columbia (2004), emphasized, as Scalia put it, that “a blast of largely inaccurate and uninformed opinion” by inaccurate media accounts “cannot determine the recusal question. It is well established that the recusal inquiry must be ‘made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.’” (Emphasis Scalia’s, quoting Rehnquist).
In Scalia’s case, he was asked to recuse from a case involving Dick Cheney, in Cheney’s official capacity as vice president, based on their having gone (at Scalia’s invitation) on a duck-hunting trip together. The newspapers were full of speculation that Cheney and Scalia could have spent significant time alone in a duck blind talking about the case, but Scalia reached his decision after recounting what actually transpired on the hunting trip, which involved no such one-on-one time and no such conversations. In other words, what matters is not that hostile press outlets can create an appearance of partiality with hyperbolic coverage; the legal standard looks at what the actual facts are.
Substantial Interests
To the general standard, Section 455(b) adds specific circumstances of some particular conflicts. These are illustrative of the types of conflicts that require recusal, and judges are instructed to follow these specific rules in these specific cases. They include the judge’s “personal knowledge of disputed evidentiary facts concerning the proceeding,” or a judge who “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” As we shall see, that rule is not so restrictively applied to Democratic appointees.
As applied to a justice’s wife, Section 455(b) requires recusal when the justice knows that his spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding,” or
-
Is a party to the proceeding, or an officer, director, or trustee of a party;
-
Is acting as a lawyer in the proceeding;
-
Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
-
Is to the judge’s knowledge likely to be a material witness in the proceeding?
What is “a financial interest” or “an interest that could be substantially affected by the outcome of the proceeding”? The core idea is “money riding on who wins the case,” and everything else is really a variation on that theme. In Lijeberg v. Health Services Acquisition Corp. (1988), for example, the Court held that a trial judge should not have heard a dispute over the ownership of a hospital corporation. One of the parties to the dispute was negotiating to buy a multimillion-dollar piece of property from Loyola University in New Orleans, which would greatly increase the value of Loyola’s other property. He could only do the deal if he won the lawsuit — and the judge was on Loyola’s Board of Trustees. Section 455(b) is less demanding regarding non-financial interests such as political causes: “An office in an educational, religious, charitable, fraternal, or civic organization is not a ‘financial interest’ in securities held by the organization.” But even though the judge had no personal stake in the lawsuit, he — as a member of the board — was responsible for an organization that had an interest in the outcome.
A judge’s interest from serving on the board of one of the parties to the case is why Ketanji Brown Jackson needs to recuse from the Harvard race-discrimination case, where she has been a member of Harvard’s Board of Overseers during the events at issue in the lawsuit (and she has, properly, promised under oath to do so).
At the opposite end of the scale, the recusal rules distinguish between the parties to a case — people with a direct stake in the outcome — and the players in a case, such as the lawyers, witnesses, and people filing amicus briefs because they care about the broader principles of law at issue. A justice’s wife who is not a party to a case may still trigger a justice’s recusal obligations because the wife has a stake in one of the parties (and thus has something riding on the outcome) or because the wife is a player in the case (and thus is herself before the Court somehow). But a wife or other family member who has some stake in one of the players is a second step removed, so the rules are less rigorous. The rules do not require recusal merely because a wife has some involvement with a lawyer, witness, or amicus in a case, unless the wife’s compensation depends on the outcome of a case.
In 1993, seven members of the Court, led by Rehnquist and including Thomas and Scalia as well as liberals such as Ruth Bader Ginsburg and John Paul Stevens, issued a joint “Statement of Recusal Policy” dealing specifically with the problem of when a justice has a spouse, child, or other family member who practices law with a firm that has a case before the Court. The increasing size of law firms and the fact that large firms often have active Supreme Court practices makes it ever more likely that this situation would recur.
If the recusal standards were draconian, the justices would have been forced to acknowledge that a member of a law partnership — and maybe even any lawyer in the firm — inevitably has a stake in any case his or her firm takes all the way to the Supreme Court. But instead, the justices sought to strike a balance (of equal parts common sense and formalistic legal fictions) to allow them to stay on cases and allow their families to practice law. Recusal was required only when the conflict was real, not just possible.
As the justices noted, “We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” The justices reasoned that, if Congress had meant for the recusal rules to be automatic, it would have said so — as it did in some specific situations, such as the justice being a witness in the case. But a financial interest in an organization that is appearing in a case as an advocate (rather than as one of the parties) calls instead for judgment. So the justices set out some factors to isolate cases where the justice’s family really had money or careers riding on a case: Was the lawyer the lead lawyer in the case in the lower courts? Would the lawyer’s compensation be significantly affected by the case? Or, has the firm walled off the lawyer’s pay from its income from regular Supreme Court cases?
Those sorts of arrangements allowed family members to practice law even at firms that were active before the Court. Martin Ginsburg, the husband of Ruth Bader Ginsburg, practiced tax law for many years at Fried, Frank, Harris, Shriver & Jacobson. Eugene Scalia, the son of Justice Scalia, was a partner at Gibson Dunn & Crutcher for decades while his father was on the Court. Both firms appeared multiple times before the Court without incident.
Rehnquist ruled specifically on this situation in Microsoft. His son, a partner at a Boston firm, was representing Microsoft as local counsel in an antitrust case. A different Microsoft antitrust case came to the Court. Rehnquist’s son was not involved in that case. Rehnquist acknowledged that his son could have an interest, in a general sense, in how his client fared in a case involving the same area of law. But that was not enough to require recusal:
A decision by this Court as to Microsoft’s antitrust liability could have a significant effect on Microsoft’s exposure to antitrust suits in other courts. But, by virtue of this Court’s position atop the Federal Judiciary, the impact of many of our decisions is often quite broad. The fact that our disposition of the pending Microsoft litigation could potentially affect Microsoft’s exposure to antitrust liability in other litigation does not, to my mind, significantly distinguish the present situation from other cases that this Court decides. Even our most unremarkable decision interpreting an obscure federal regulation might have a significant impact on the clients of our children who practice law. Giving such a broad sweep to § 455(a) seems contrary to the “reasonable person” standard which it embraces.
Of course, the justices do sometimes recuse out of an excess of caution where there may be some connection to family members’ business. In 2007, for example, Justice Thomas recused from a number of cases involving Wachovia, while his son was working at Wachovia Securities. It was a pivotal period for the company: Within a year, the financial crisis wrecked Wachovia as an independent business, and it was taken over by Wells Fargo.
Opinions Are Not Interests
Recent years have seen a battery of prominent — and typically ridiculous — recusal demands from Democrats and progressives aimed at the conservative justices. Cory Booker demanded that Brett Kavanaugh recuse from all cases involving scandals relating to the president who nominated him, a standard that Democratic appointees had conspicuously not followed in the 1990s. Liberals demanded that Thomas must recuse himself from any cases involving Biden, because of Biden’s mistreatment of Thomas at his confirmation hearings and Thomas’s undisguised bitterness at that treatment. Chuck Schumer demanded that Amy Coney Barrett recuse from the pending challenge to Obamacare because she had written scholarly commentary on an earlier, different Obamacare case and participated in an academic moot-court exercise hearing arguments on the case that was then before the Court (in which she ended up ruling the way Schumer wanted anyway). Sheldon Whitehouse demanded that Barrett recuse from a case involving the Americans for Prosperity Foundation because Americans for Prosperity, a different group similarly funded by Charles Koch, had spent money on ads advocating her confirmation. All of these, as I explained at the time, were ridiculous under the rules. Conservatives are right to regard the current round of calls for Thomas’s recusal or even impeachment with cynicism.
The current round of demands started off with claims that Thomas should recuse himself just because his wife has publicly expressed political opinions, some of them quite pungent. The mere fact of being involved in politics, or having political opinions, does not require a justice to recuse, let alone if it is his wife who does so. From 1789 to 2006, the Court always had at least once justice who had been an elected politician, and sometimes several of them. Taft had been president. Chief Justice John Jay had been the chief executive under the Articles of Confederation. Salmon P. Chase, Charles Evans Hughes, and Earl Warren had all been presidential contenders. Hugo Black, Oliver Ellsworth, Lucius Lamar, and others had been senators. James Byrnes, like Warren and Jay, had been a governor. All of these men had track records in politics: public statements, positions on issues, partisan loyalties, personal grudges. It was simply assumed that they could lay those aside.
In his opinion in the Cheney duck-hunting controversy, Scalia recounted the long history of justices socializing with presidents and attorneys general — regular poker games, ski trips — even while hearing cases of vital importance to their administrations. That included Byron White’s relationship with Robert F. Kennedy, who was arguing a case before the Court. These days, of course, the great majority of cases on the Court’s docket are argued by some lawyer who clerked for one of the justices.
Courts routinely reject unduly strict readings of the recusal rules when the “interest” is a progressive cause or the politics of a liberal judge’s spouse. Elena Kagan served as Barack Obama’s solicitor general when Obamacare was passed, and as Ed Whelan has detailed, she was engaged in the initial stages of organizing a legal defense of Obamacare. That could arguably have subjected her to recusal; in Williams v. Pennsylvania (2016), for example, the Court held that a judge was required to recuse from a death-penalty case in which, decades earlier as the district attorney, he had signed off on a memo approving the assistant DA’s seeking the death penalty in that case. But Kagan, without even a detailed self-justification of the sort presented by Rehnquist and Scalia, sat on the case and provided a decisive fifth vote to uphold Obamacare’s constitutionality (although she did vote to strike down a portion of the Medicaid expansion).
Then there’s Stephen Breyer. As Andy McCarthy notes:
Justice Stephen Breyer has been aptly described as the primary architect of the federal sentencing guidelines. He steered them through Congress in 1984 as the Senate Judiciary Committee’s chief counsel before serving, as a federal appeals court judge, on the Sentencing Commission that created the guidelines. Yet, after being appointed to the high court by President Clinton, Breyer declined to recuse himself when the Supreme Court weighed the constitutionality of the guidelines. Indeed, he wrote a 5–4 majority opinion in 2005 that sustained the guidelines scheme, though declaring it advisory rather than mandatory.
Then there’s Justice Ruth Bader Ginsburg:
Law professor Jane Ginsburg, the Justice’s daughter, wrote an article about a case pending before the Supreme Court. The petitioner cited Jane’s article in its brief, and Justice Ginsburg voted for the result advocated by her daughter. Marty Ginsburg solved a complex tax problem for his client, Ross Perot’s company EDS, and Perot endowed a chair named after Marty Ginsburg at Georgetown University Law Center. When Perot and EDS appeared several times before the Supreme Court, Justice Ginsburg did not recuse . . .
Ginsburg once donated an autographed copy of her VMI opinion to the pro-abortion NOW Political Action Committee, which auctioned off the opinion at a fundraiser in 1997. Moreover, in 2004, she spoke at a lecture named after herself for the NOW Legal Defense Fund, on whose board she served in the 1970s. Two weeks before that lecture, Justice Ginsburg voted in favor of a position advocated by the NOW Legal Defense Fund in an amicus brief.
Justice Sonia Sotomayor served for twelve years on the board of the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF. The group continues to file amicus briefs with the Court, including two briefs in the litigation over citizenship questions in the 2020 Census. Justice Sotomayor did not recuse.
Marjorie Rendell sat as a district judge in Philadelphia from 1994 to 1997, and as an appellate judge on the Third Circuit from 1997 through 2015. She was appointed to both positions by Bill Clinton. During this time period, her husband Ed served as mayor of Philadelphia, governor of Pennsylvania, and chairman of the Democratic National Committee. He was also a former Philadelphia district attorney, whose old cases were still in the system. Marjorie Rendell was careful to recuse herself when the state government or one of her husband’s major campaign donors was before the court. But she did not recuse herself every single time there was a political issue on which her husband was publicly vocal. That would have been impossible: In addition to being the national chairman of one of the two major parties and governor of the largest state in her circuit, Ed Rendell was a fixture on cable-television talk shows, and he was not a shrinking violet. Just keeping track of every topic on which Ed Rendell had a vigorously expressed public opinion would have been a full-time job. But it was broadly accepted that this did not require his wife to step down as a judge or never rule on any matter of public controversy intersecting with his political stances.
Mark Paoletta notes another example of how these rules don’t tightly constrain liberal judges:
D.C. Circuit Judge Nina Pillard . . . has sat on cases in which her husband, David Cole, the ACLU’s national legal director, has publicly advocated a specific outcome. For example, Cole praised a judge’s decision rejecting President Donald Trump’s refusal to comply with a congressional subpoena to produce his taxes. The D.C. Circuit panel affirmed this ruling, and then Judge Pillard considered whether to rehear the case en banc. Pillard voted against the rehearing, thereby allowing the decision, which her husband had supported, to stand. Cole also wrote critically on the confinement conditions of enemy combatants held at Guantanamo Bay. Judge Pillard sat on two cases in which she voted in favor of the claims of Guantanamo detainees.
Then, there was the litigation in California over same-sex marriage. The case challenging Proposition 8 was decided after a twelve-day bench trial by Vaughan Walker, then the chief judge of the Northern District of California, based in San Francisco (the same court in which Justice Breyer’s brother sits). Because it was a bench trial, Judge Walker was effectively both judge and jury, with vast power to favor one side and shape the factual record. He ruled to strike down the state’s same-sex marriage ban. Then, he resigned from the bench and disclosed that he was gay and in a same-sex relationship. His ruling directly affected his own legal capacity to marry his same-sex partner — something he had not disclosed until after the trial.
Walker’s replacement as chief judge ruled that this did not require recusal because — get this — people in same-sex relationships did not have any more substantial interest in the legality of same-sex marriage than anyone else:
It is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. . . . We all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. . . . Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case.
The district court also argued that it would be unworkable to inquire further into whether Judge Walker had any interest in marrying, comparing this to a religious test that asked whether a Catholic judge could be fair to an abortion clinic.
Nobody could buy this argument with a straight face, but the ruling went to the Ninth Circuit, where the appeal would be heard by a panel headed by Stephen Reinhardt, a veteran progressive activist judge who was then widely revered on the left (before the sexual-harassment issues that emerged about Reinhardt after his death). Reinhardt’s wife had been the executive director of the ACLU of Southern California for 38 years, and her organization had well-known stances favoring same-sex marriage and opposing Proposition 8. They had filed an amicus brief in the district court before Judge Walker, but to avoid forcing a recusal, they stayed out of the appeal. Reinhardt, cheered on by liberal legal-ethics eminence Stephen Gillers (now calling for Thomas’s recusal), wrote a stirring ode to why the loud, confrontational politics of a judge’s wife do not require him to recuse:
My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). . . . My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance. Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses . . .
It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. . . . Nor can I accept the argument that my wife’s views constitute an “interest” that could warrant my recusal . . . such a reading would require judges to recuse themselves whenever they know of a relative’s strongly held opinions, whether publicly expressed or not. . . . I likewise cannot conceive how such an “interest” could be said to exist by virtue of the fact that the ACLU/SC as an organization has expressed positions regarding the subject at issue in this case. The ACLU/SC is devoted to advocating for numerous social issues, many of which come before the court, of which same-sex marriage is but one.
Having justified his own refusal to recuse, Reinhardt then went on to write the court’s opinion upholding the preposterous ruling that Judge Walker did not need to recuse. The Supreme Court ended up throwing out the appeal on standing grounds, so the 7 million Californians who voted for Proposition 8 never did get a day in court that didn’t involve either Judge Walker or Judge Reinhardt.
The lesson here, at least where liberal or progressive causes or Democratic politicians are involved, is that the recusal standard asks how the case could affect the judge’s spouse directly in a financial bottom-line sense or as a direct participant in the litigation, not how it might affect some person or cause she cares about, some opinion she holds loudly, or even the judge’s own ability to exercise legal rights. Should conservative judges be held to a different standard?
The Hawaii Amicus Brief
That brings us to the first of the two specific charges against Justice Thomas: that he should have recused in Trump v. Hawaii, the case involving the Trump travel ban (or “Muslim ban”), which the Court upheld 5–4 in 2018, with Thomas providing a decisive fifth vote. Jane Mayer of the New Yorker:
Frank Gaffney . . . was a proponent of Trump’s . . . immigration policies, including, most vociferously, of the Administration’s Muslim travel ban. As these restrictions were hit by lawsuits, Gaffney’s nonprofit, the Center for Security Policy, signed the first of two big contracts with Liberty Consulting [Ginni Thomas’s consulting firm]. According to documents that Gaffney’s group filed with the I.R.S., in 2017 and 2018 it paid Ginni Thomas a total of more than two hundred thousand dollars. . . . In August, 2017, Gaffney and six other advocates submitted an amicus brief to the Court in support of the restrictions . . .
Mehdi Hasan argues that this should support an impeachment of Thomas. Only once has a Supreme Court justice been impeached — Samuel Chase, who was acquitted by the Senate in 1805 — and the Chase impeachment, for his own intemperate political rhetoric from the bench, is typically seen today as itself a political excess.
Mayer is a frequently dubious source. Even in the same section of the same article, she claims that Thomas attended a dinner at which his wife gave Gaffney an award, but she seems not to have actually interviewed the only named source for this allegation, who told Paoletta that Justice Thomas was not at the dinner – and in fact, it wasn’t a dinner but a luncheon.
When you dispel the smoke from this charge, however — including Mayer’s complaints that Thomas has not properly disclosed or accounted for his wife’s consulting income in his financial disclosures, having had to restate his disclosures to account for her income in the past — it basically comes down to the argument that Thomas should have recused because his wife did outside consulting work for an amicus in the case. But that is not a relationship that requires recusal. An amicus is not a party, and there is no sign that Ginni Thomas’s compensation would depend on the outcome of the litigation.
In Sao Paulo, the judge’s name had appeared on an amicus brief in a similar suit against the same defendants filed by the Louisiana Trial Lawyers Association. That was an oversight. He had been the group’s president, and the LTLA routinely listed its president’s name on the brief. But by the time the brief was filed, the judge was merely a member of the LTLA’s executive committee. That did not require recusal because “he took no part in the preparation or approval of the amicus brief; indeed, he was only ‘vaguely aware’ of the case.” As the Court unanimously concluded, “We think it self-evident that a reasonable person would not believe he had any interest or bias.” Yet his relationship with LTLA as a recent president and present member of the executive committee was obviously more direct than the relationship between Justice Thomas, through his wife’s consulting group, with the Center for Security Policy.
Bear in mind, as well, a factor that Reinhardt cited in the Proposition 8 case: The sheer number of briefs and parties involved in Trump v. Hawaii. There were 72 amicus briefs in the case. The president who appointed Justice Neil Gorsuch and was publicly criticized by Ginsburg was the defendant, and the litigation heavily involved the president’s public statements on the campaign trail. Counting Hawaii, the governments or governors of 32 states and the District of Columbia appeared in the case as parties or amici; so did dozens of members of Congress. The United States Conference of Catholic Bishops — the church to which a majority of the justices belonged — filed an amicus brief. So did the American Bar Association. So did the universities from which every single justice graduated. So did scores of other legal and political scholars and commentators. Every justice on the court had to have friends, supporters, ex-colleagues, and former clerks on both sides of the case.
If the Center for Security Policy was a party in the Trump v. Hawaii case, it would be a different story. But as one of 72 amici in a case where just about everybody who could staple the pages together filed a brief? Under the Sao Paulo standard, no reasonable person would consider that grounds for recusal.
How Much Money Talks
All of the above assumes — without evidence — that Ginni Thomas even knew that the Center for Security Policy was filing an amicus brief, and thus would have been in a position to inform Justice Thomas that this was one of her consulting clients. The justice himself is bound by the rule that “a judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse,” and the Court in Lijeberg emphasized that a reasonable observer would assume that a judge should know things that bear directly on his interests, but he cannot know what he is not told. Certainly, there is no sign that she was involved in the brief.
Given that a relationship with one amicus out of dozens isn’t ordinarily enough to require recusal, does it matter that Ginni Thomas was well paid by the Center for Security Policy? True, $100,000 a year for two years is a lot of money, albeit less than the $274,000 salary of a Supreme Court justice, and by no means Ginni Thomas’s only source of consulting income. It undoubtedly is less than Judge Reinhardt’s wife was paid over 38 years running the ACLU of Southern California.
The bar for considering the volume of money alone to represent a conflict is high. The Court required judicial recusal in its 2009 decision in Caperton v. A. T. Massey Coal Co., which held that the due-process clause was violated by a West Virginia judge’s partiality in a case where the coal company defendant’s chairman and CEO spent $3 million to get the judge elected while the appeal was pending — a massively disproportionate share of the total spending in the entire judicial-election campaign. Caperton, however, was recognized by the Court as “an extreme case” where the CEO spent “more than the total amount spent by the campaign committees of both candidates combined.”
One Supreme Court justice, Abe Fortas, resigned in disgrace over financial conflicts, but again, the conflict of interest was not some chain of hypotheticals but things that very obviously stank in the nostrils of even his supporters and were mixed with the justice’s own actions off the bench. Some of Fortas’s conflicts contributed to the 1968 filibuster of his elevation to be chief justice. More came out in the subsequent months, leading Fortas to resign in May 1969:
First, there was a $15,000 payment to Fortas for a summer teaching post. Not only was this considered an extraordinary supplement to his $39,500 government salary, the post was funded by former law firm clients. More significantly for a sitting justice, Fortas revealed he had never stopped advising [Lyndon] Johnson — attending White House staff meetings, advising on judicial nominations and reporting on private deliberations by the court.
Faced with a Senate filibuster, Fortas asked Johnson to withdraw his name. He returned to the court only to face another scandal when Life magazine revealed he had been receiving regular payments from Louis Wolfson, a former Wall Street client convicted of fraud. Under their agreement, Fortas was to receive $20,000 a year for life. He had returned the money, but only after Wolfson was indicted.
In Fortas’s case, the ethical problem was not just one thing but several — his personal entanglement with the White House even while sitting on the Court, his breaches of Court confidences, a disproportionately sized bankroll by former legal clients, and worst of all, the suspicion that Wolfson was paying him off in exchange for fixing his legal troubles.
After Fortas resigned, Wolfson secretly recorded a 1970 conversation with Fortas that revealed that Fortas had advised Wolfson (while a justice) on his legal difficulties with the SEC. When Wolfson referenced a 1969 letter he sent to Fortas asking for his help in obtaining a presidential pardon, Fortas responded, “Lou, don’t tell the press about that. . . . Because, Lou, that would really look bad. . . . Lou, I will not burden you on what happened after that 1969 letter. . . . Sometime, you know, several years from now when this is all over I will tell you exactly what happened.”
Fortas, too, was an extreme case. Fortas’s wife was also a tax lawyer, and one of his motivations in resigning was to avoid further harm to her reputation and practice.
January 6 Texts
Then there is the other theory advanced by Justice Thomas’s critics: that he should have recused from a case involving claims of executive privilege regarding the production of certain documents to the House January 6 committee. A broader theory is that Thomas should recuse from all cases involving the 2020 election and January 6, all because his wife sent text messages to White House chief of staff Mark Meadows 29 times in November and once on January 10, urging various theories (many of them quite dubious) of how Trump should contest what she felt was a stolen election.
Again, the actual facts matter, as the Court and its justices have repeatedly reiterated in the context of recusal arguments. First, the case in which Thomas dissented alone from the denial of a stay of document production by Meadows and others to the committee — a ruling in which Thomas did not offer any opinion on the merits but voted for the Court to stay production pending a fuller hearing — did not involve any text messages sent or received by Ginni Thomas. Nor could it have done so, given that the legal issue was a claim of executive privilege. That privilege claim was advanced by the president’s advisors, of whom Ginni Thomas was not one. There was no “coverup” of her texts. We do not even need to get into what Justice Thomas did or did not know; under the governing standard, only the truth matters, and the truth is that his wife was not a party or witness to this particular dispute.
The recusal rules regarding subpoena fights may apply differently in the setting of a trial court, where the judge has to consider what witnesses might appear later in a case, because the same judge will (in most trial systems) hear the case from start to finish. In an appellate court such as the Supreme Court, by contrast, the justices do not take witness testimony; they decide particular legal questions on the basis of a factual record that is already in the books, then send the case back down if further proceedings are required. If the Court decides an issue in a case, and then a justice’s wife appears as a witness later in the litigation, the justice might then have a conflict, but not necessarily, given that the wife would not be testifying in the Supreme Court. There would only be a real potential for recusal if the justice had reason to know all along that the legal issue before the Court had some more direct bearing on his wife’s status as a witness.
Second, that brings us back again to the actual facts: Most of the efforts to turn Ginni Thomas into some sort of co-conspirator are utterly detached from reality. She was offering opinions to people who were bombarded with opinions. As George Will has observed, “To say that she was ‘strategizing’ with the White House is akin to saying that the guy in the stadium’s upper deck yelling ‘Roll Tide!’ and shouting suggested plays is strategizing with Alabama’s football team.” A non-lawyer consultant, uninvolved in any of the underlying litigation or congressional proceedings, could not possibly have any legal exposure just for sending opinions over text messages. Efforts to connect her to January 6 based on texts in November to people other than the January 6 rioters are most charitably described as speculation.
As the Wall Street Journal editorial board notes, we only know about these texts because someone (presumably a Democrat) on the committee leaked them in a transparent effort to harass and embarrass her husband. Should that sort of thing be rewarded?
Of course, if a future case reasonably involved some theory of legal liability for Ginni Thomas, or a subpoena for her own testimony or documents, there would be a real recusal argument — assuming one does not apply the Judge Walker standard, in which any argument about the law affects every American equally. But we are not there. Nor, by any stretch, are we in a situation where the mere fact of Ginni Thomas having sent some agitated texts to people on Team Trump about the 2020 election implicates her in a “coup” that is likely to present a legal case to the United Supreme Court anytime soon. The recusal rules are, above all else, premised upon reasonableness. No rule requires the justices to bend the knee to every partisan conspiracy theory.
This article has been updated since publication to more properly reflect the inaccuracy of Jane Mayer’s description of the event Clarence Thomas did not attend. It was not a dinner, but a luncheon inaccurately described by Mayer as a dinner.