It should go without saying that Clarence Thomas should stop participating in any cases related to the 2020 elections and 1/6 insurrection, and it should also go without saying that he almost certainly won’t:
Several of the country’s most respected legal scholars say that Supreme Court Justice Clarence Thomas must immediately recuse himself from any cases relating to the 2020 election and its aftermath, now that it has been revealed that his wife, Virginia (Ginni) Thomas, colluded extensively with a top White House adviser about overturning Joe Biden’s victory over then President Donald Trump. On March 24th, the Washington Post and CBS News revealed that they had obtained copies of twenty-nine text messages between Ginni Thomas and Mark Meadows, the Trump White House chief of staff, in which she militated relentlessly for invalidating the results of the Presidential election, which she described as an “obvious fraud.” It was necessary, she told Meadows, to “release the Kraken and save us from the left taking America down.” Ginni Thomas’s texts to Meadows also refer to conversations that she’d had with “Jared”—possibly Trump’s son-in-law Jared Kushner, who also served as a senior adviser to the Administration. (“Just forwarded to yr gmail an email I sent Jared this am.”)
Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, described the revelations as “a game changer.” In the past, he explained, he had supported the notion that a Justice and his spouse could pursue their interests in autonomous spheres. “For that reason, I was prepared to, and did tolerate a great deal of Ginni’s political activism,” he said. But “Ginni has now crossed a line.” In an e-mail reacting to the texts, Gillers concluded, “Clarence Thomas cannot sit on any matter involving the election, the invasion of the Capitol, or the work of the January 6 Committee.”
As I noted in a recent investigation of Ginni Thomas, Supreme Court Justices aren’t bound by the judicial code of conduct that applies to all other federal judges, which mandates that they recuse themselves from participating in any cases in which personal entanglements could cause a fair-minded member of the public to doubt their impartiality. Yet Justices are subject to a federal law that prohibits them from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.” The statute, 28 U.S.C. section 455, also requires them to disqualify themselves from any proceedings in which their “impartiality might reasonably be questioned.”
Justice Thomas has already participated in two cases related to the 2020 election and its aftermath, despite his wife’s direct involvement in the so-called Stop the Steal efforts. A third case, John Eastman v. Bennie Thompson, may soon reach the Court. Eastman, a right-wing legal theorist who advised Trump on ways to challenge the 2020 election results, is arguing that attorney-client privilege shields his records from the congressional committee that is investigating the January 6th insurrection, which is chaired by Thompson, a Democratic member of Congress from Mississippi; the committee argues that this privilege can’t be used to conceal potential crimes by Eastman or Trump. The case, currently in a federal district court in California, is likely to reach the Supreme Court on appeal.
I doubt that adding the Supreme Court to the Judicial Code of Conduct would make a difference either; there is no higher court, so the only remedy would be impeachment and removal, and there are no circumstances under which any Senate Republican would vote to convict a Republican justice with a Democrat in the White House, so if Thomas wants to keep behaving in a grossly unethical manner he can.
Of course, the larger problem here is that Ginni’s actions pale in comparison to what her husband already did:
If you think the Ginni Thomas texts are bad, wait until you learn about how Clarence Thomas successfully conspired with four other high-ranking government officials to overturn the result of the 2000 election.— Ian Millhiser (@imillhiser) March 25, 2022
Tushnet’s prescient arguments about the inevitable normalization of Bush v. Gore, alas, apply to this to.