You be the judge

The Washington Post ran a story about the lack of ethical oversight for Supreme Court justices the other day. The article came in the wake of Jane Mayer’s piece on the same story in the New Yorker. Not only are their majority rulings unappealable, the judges are not subject to the same ethical rules that bind all other members of the federal judiciary and every other employee of the federal government. They are not subject to any ethical rules whatsoever, actually.

Clarence Thomas’s wife, Ginni, is a right wing lawyer, member of the secret non-profit Council for National Policy, an activist member of MAGA nation who works as a highly paid consultant for right wing outfits that petition the court in various cases. Thomas finds no reason to recuse himself from casting the potentially deciding vote on these cases dear to his wife and the rest of America’s far right. Truly, there is no reason for him to do so, outside of the ethical standard that constrains all other judges from ruling on cases where it looks like they, or a family member, have a vested interest. This is from the Washington Post:

Ginni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the Jan. 6 insurrection as “overtly partisan political persecution.”

One month later, her husband, Supreme Court Justice Clarence Thomas took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.

Thomas was the only justice to say he would grant Trump’s request.

That vote has reignited fury among Justice Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court. . .

. . . Caroline Fredrickson, a Georgetown University law professor who served on the White House commission, said that she could think of no precedent for Justice Thomas’s decision to rule on issues closely linked to his wife’s activism.

“In every case that has come up, he has shown no interest in recusal and has in fact seemingly been defiant,” Fredrickson said. “To be a Supreme Court justice and to be married to a firebrand activist who’s trying to blow things up” is unique. “It’s so out of bounds that if it weren’t so frightening, it would be comical.”

Fredrickson said that while Thomas theoretically is supposed to recuse himself when there is a perceived conflict, “there’s no binding mechanism” to enforce it. “It’s sort of the honor system, it depends on their own evaluation. … It’s kind of crazy. They’re supposed to be responsible for keeping us all on the right side of the law. And in fact, they don’t have any responsibilities themselves.”. . .

. . . The first major case that drew national attention to that potential conflict came in 2000, when the fate of the presidential campaign between Republican George W. Bush and Democrat Al Gore came before the Supreme Court. At the time, Ginni Thomas was working with the Heritage Foundation to recommend people for jobs within a possible Bush administration. Some Democrats called for Clarence Thomas to recuse himself from hearing the case that would decide the presidency, but Ginni Thomas told the New York Times at the time that “There is no conflict” and that she rarely discussed cases with her husband.

It was a pivotal, historic moment, and Gore faced a decision that would set the tone for politicians dealing with the court for years. Pressed by his aides about whether to call out the perception of the conflict, Gore instead instructed his deputy campaign manager Mark Fabiani to issue a statement that said, “The vice president has the highest regard for the independent judiciary, so we’re not going to comment on the various questions that have been raised.”

Thomas then joined with the 5-4 majority that ruled for Bush.

Today, Fabiani looks back and sees Gore’s faith in the independence of the judiciary as a turning point in history.


I have not yet read all of the great Jane Mayer’s story on this subject in a recent New Yorker, which came out a few days before this one, and is much more detailed [1]. This one has detail enough, for a short article. Here’s how this Washington Post piece ends:

Hours before the attack on the Capitol, she [Ginni Thomas] celebrated the crowd at the “Save America” rally on the Ellipse, where Trump and others made baseless claims that the election had been stolen. She urged people to tune into C-SPAN “for what Congress does starting at 1:00 p.m. today. LOVE MAGA people,” referring to Trump’s slogan, “Make America Great Again.” In a subsequent post, she wrote, “GOD BLESS EACH OF YOU STANDING UP OR PRAYING.”

After the protesters stormed the Capitol, Ginni Thomas updated her post to note that it was written before the violence. She later wrote a message to a group of about 120 people who had clerked for her husband, suggesting that she would refrain from inserting herself in such divisive political matters.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” she wrote. “My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long.”

In the wake of that apology, reported last year by The Post, she wrote, “Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”

Nonetheless, months later, Ginni Thomas inserted herself into one of the most fraught political issues of the moment: the investigation into what led to the insurrection.

She was among a group called the Conservative Action Project who signed a Dec. 15, 2021, letter to House Minority Leader Kevin McCarthy (R-Calif.) decrying the probe. The letter said that the two Republicans on the panel, Reps. Liz Cheney (Wyo.) and Adam Kinzinger (Ill.), should be removed as members of the House Republican Caucus, complaining that the committee put out “improperly issued subpoenas and other investigatory tactics designed not to pursue any valid legislative end, but merely to exploit for the sake of political harassment and demagoguery.”

This high-powered hyper-right wing white female lawyer is the perfect wife for the Supreme Court’s Black Klansman. He learned everything he needed to know about recusing himself for the appearance of impropriety from his mentor Antonin Scalia. Scalia flew in Vice President Cheney’s plane for a few days of hunting, while Scalia was sitting on a case involving keeping all details of Cheney’s Energy Deregulation Task Force top secret, though the work of the task force led to a financial calamity for the State of California. Asked about the appearance of impropriety, Scalia shook his head and told the young reporter “it’s a sad day in America when people question the integrity of a Supreme Court Justice.”

Had she been a great and experienced reporter, you’d have hoped for the obvious follow-up question. “Yes, Justice Scalia, we can all agree it’s a sad day in America when that happens. My question, which you have not answered, stands, though, ‘given the appearance of impropriety, which is the standard for recusal, how do you justify not recusing yourself from this case involving a personal friend you took a vacation with recently?” Scalia, a brilliant and witty man, would no doubt have put the pushy reporter in her place, but the question remains: is it perfectly fine for unappealable partisans to decide, on their own, when they have crossed an ethical line signing rulings that defend their, or their loved ones, extreme positions?

[1] for example, from the great Jane Mayer:

His wife, meanwhile, has become less publicly visible, but she has remained busy, aligning herself with many activists who have brought issues in front of the Court. She has been one of the directors of C.N.P. Action, a dark-money wing of the conservative pressure group the Council for National Policy. C.N.P. Action, behind closed doors, connects wealthy donors with some of the most radical right-wing figures in America. Ginni Thomas has also been on the advisory board of Turning Point USA, a pro-Trump student group, whose founder, Charlie Kirk, boasted of sending busloads of protesters to Washington on January 6th. . .

. . . Four years ago, Ginni Thomas inaugurated the Impact Awards—an annual ceremony to honor “courageous cultural warriors” battling the “radical ideologues on the left” who use “manipulation, mobs and deceit for their ends.” She presented the awards at luncheons paid for by United in Purpose, a nonprofit that mobilizes conservative evangelical voters. Many of the recipients have served on boards or committees with Ginni Thomas, and quite a few have had business in front of the Supreme Court, either filing amicus briefs or submitting petitions asking that the Justices hear cases. At the 2019 event, Ginni Thomas praised one of that year’s recipients, Abby Johnson, a former Planned Parenthood employee who became an anti-abortion activist, for her “riveting indictment of Planned Parenthood’s propagation of lies.” That year, Thomas also gave a prize to Mark Meadows, then a hard-line Republican in Congress, describing him as the leader “in the House right now that we were waiting for.” Meadows, in accepting the award, said, “Ginni was talking about how we ‘team up,’ and we actually have teamed up. And I’m going to give you something you won’t hear anywhere else—we worked through the first five days of the impeachment hearings.” . . .

. . . Another organizer of the January 6th uprising who has been subpoenaed by the congressional committee, Ali Alexander, also has long-standing ties to Ginni Thomas. Like Fletcher, Alexander spoke at a rally in Washington the night before the riot, leading a chant of “Victory or death!” A decade ago, Alexander was a participant in Groundswell, a secretive, invitation-only network that, among other things, coördinated with hard-right congressional aides, journalists, and pressure groups to launch attacks against Obama and against less conservative Republicans. As recently as 2019, Ginni Thomas described herself as the chairman of Groundswell, which, according to documents first published by Mother Jones, sees itself as waging “a 30 front war seeking to fundamentally transform the nation.” As Karoli Kuns, of the media watchdog Crooks and Liars, has noted, several Groundswell members—including Steve Bannon and Sebastian Gorka, the fringe foreign-policy analyst—went on to form the far-right flank of the Trump Administration. (Both Bannon and Gorka were eventually pushed out.) According to Ginni Thomas’s biography in the Council for National Policy’s membership book, she remains active in Groundswell. A former participant told me that Thomas chairs weekly meetings. . .

. . . In January, 2019, Ginni Thomas secured for Gaffney the access that her Web site promises. As Maggie Haberman, of the Times, and Jonathan Swan, of Axios, have reported, not long after Clarence and Ginni Thomas had a private dinner at the White House with Donald and Melania Trump, the President’s staff gave in to a months-long campaign by Ginni to bring her, Gaffney, and several other associates to the White House to press the President on policy and personnel issues. The White House was not informed that Gaffney’s group had been paying Liberty Consulting for the previous two years. (Gaffney’s group did not report signing a contract with Liberty Consulting for 2019.)

The White House meeting was held in the Roosevelt Room, and by all accounts it was uncomfortable. Thomas opened by saying that she didn’t trust everyone in the room, then pressed Trump to purge his Administration of disloyal members of the “deep state,” handing him an enemies list that she and Groundswell had compiled. Some of the participants prayed, warning that gay marriage, which the Supreme Court legalized in 2015, was undermining morals in America.

One participant told me he’d heard that Trump had wanted to humor Ginni Thomas because he was hoping to talk her husband into retiring, thus opening up another Court seat. Trump, given his manifold legal problems, also saw Justice Thomas as a potentially important ally—and genuinely liked him. But the participant told me that the President considered Ginni Thomas “a wacko,” adding, “She never would have been there if not for Clarence. She had access because her last name was Thomas.”


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