Wife’s right to individuality unlikely to lead to Justice Thomas’ recusal

The release of certain email correspondence of Virginia Thomas – she prefers “Ginni” – and wife of Supreme Court Justice Clarence Thomas has propelled her into the middle of several controversies involving judicial ethics, the Jan. 6, 2021 insurrection, 2020 presidential election, the Supreme Court and maybe even aspects of feminism and/or marital relations.

Ms. Thomas, an individual with strong conservative political convictions and affiliations, was a fierce advocate of the concept that the 2020 presidential election had not been fairly decided, and in fact had been stolen from the incumbent. She pursued this conviction with attempts to persuade Mark Meadows – the outgoing President’s chief of staff – to fiercely contest the election result. She involved herself to the extent of recommending counsel for the effort. She attended the “Stop the Steal” rally on the morning of Jan. 6 that preceded the march to the capitol. (She went home from the rally, rather than proceeding to the Capitol herself, explaining that she was cold).

There is no question that Ms. Thomas holds and is not shy of expressing strong conservative views. She has her own conservative think tank. The extreme nature of some of her remarks in the recently released emails no doubt has intensified the controversy. She strongly urged the President’s chief of staff not to give up the effort to overturn the election; she referred to the election of Biden as “the greatest steal in our history.”

All the while her husband, in his role as a Supreme Court justice, was being asked to rule on lawsuits (and presumably prosecutions) involving the election and the insurrection that have reached, and may continue to reach, the Supreme Court.

Ginni Thomas’ words and actions have caused some academic and other commentators to find that Justice Thomas should have recused himself from ruling in these and future cases. The Republican leadership in Congress has found no cause for his recusal.

The law on the recusal of federal judges (28 U.S. Code section 455) applies to all federal justices, judges, and magistrate judges. It provides that a judge shall be disqualified from deciding any matter “where his [sic] impartiality might reasonably be questioned.”

The law contains a reasonableness standard, meaning its application must be decided in each case. But once it is decided that the question exists, they shall be disqualified; that part is mandatory.

One of the shortest entries in the Oxford Guide to the Supreme Court (2005 ed.) is “recusal.” In less than one hundred words it mentions one event, when John Marshall recused himself because he had participated in an earlier phase of an 1816 case and had a financial interest in its outcome.

The problem is that no judge or body has the power to rule with respect to possible recusal of a Supreme Court justice. There is no higher court. The Court itself has declined to impose its collective judgment on individual justices. Chief Justice Roberts has written that he has “complete confidence in the capability of my colleagues to determine when recusal is warranted.” Their character and fitness, he continued, have been examined by the appointment and confirmation process. He has taken no action to develop Court rules for assertions of prejudgment.

The state of the law leaves it up to each individual justice to decide whether they can decide any given case. (The statute has specific provisions in addition to the basic rule, but only the subsection addressing financial interests requires a judge to inquire with respect to the interests of family members).

There exists the possibility that either Congress or the Court itself could formulate a procedure to apply the existing statute to the Supreme Court. No action initiating such a program has been taken recently; none is pending.

There are wheels within wheels here. There is little reason to believe that Ms. Thomas’ views would cause any change in the Justice’s rulings. His votes on contested matters relating to the election, where they diverged from a unanimous ruling, are entirely consistent with his constitutional doctrines. But that is beside the point. The standard is whether his impartiality can be questioned from the outside looking in?

Ms. Thomas has denied that either of them influence the other. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” The Justice, not surprisingly, has not commented.

That takes the issue in a different direction. Is a wife entitled to her own politics and employment without having it attributed to her husband? Is there an automatic assumption of communication and unity? Is this a feminism issue? (If we change “wife” to “spouse” in the sentence, the subject becomes “marriage,” but that is another case.) There is no ready answer to these questions, but the individuality and independence of every person should merit respect.

Whatever a disinterested individual might ultimately decide on the issue, the Justice’s decision not to recuse has been made in the cases already decided. With respect to any pending or future cases, the issue may arise under new factual circumstances. The House Committee investigating the January 6 events is considering calling Ms. Thomas as a witness. Any issues arising from (for instance) a subpoena to her could put a new set of chips on the table.

As to the Court’s image and standing, the public will make up its own mind on this issue. There is little reason to believe its conclusions will be any less influenced by partisan considerations than with all other public questions in these troubled times.

The most likely denouement of this brouhaha: Justice Thomas will continue to consult his conscience and will continue to find that his impartiality cannot reasonably be questioned.