There are many reasons why the Supreme Court has fallen into unprecedented disrepute, but chief among them is the conservative justices themselves — whether it’s their rulings in particular cases or their dubious non-jurisprudential conduct, like screaming at senators. This week brought another credibility-damaging revelation in the form of deranged text messages between Ginni Thomas, the wife of Supreme Court justice Clarence Thomas, and Mark Meadows, Donald Trump’s chief of staff, in which she lobbied and advised Meadows on trying to keep Trump in power after he lost the 2020 election — referring to the “Biden crime family & ballot fraud co-conspirators,” claiming the “Left” was “attempting the greatest Heist of our History,” and arguing that Biden’s victory would be “the end of Liberty.”
The revelations follow two major journalistic accounts in recent months — one from The New Yorker and the other from The New York Times Magazine — about the ways in which Ginni Thomas’s work as an ultra-right-wing activist has repeatedly intersected with her husband’s work on the Court, where he rules on the very issues that she advocates on in the political realm. As the Times put it, “Since the founding of the nation, no spouse of a sitting Supreme Court justice has been as overt a political activist as Ginni Thomas.” According to that story, she once attended a meeting in the Trump White House that an aide described as “the craziest meeting I’ve ever been to,” with talk of “the transsexual agenda” and parents “chopping off their children’s breasts.”
The text messages with Meadows, however, have broken through in a way that none of this other material has, spurring a variety of ethical and legal questions about the Thomases.
The most proximate of these is whether Clarence Thomas should have recused himself when the Court resolved an effort in January by Trump to block the release of records from the National Archives to the House Select Committee investigating the siege of the U.S. Capitol. The Court ruled against Trump 8-1, with Thomas as the lone dissenter, so as a practical matter at least, any conflict would not have affected the outcome, but the question exposes the broader absurdity and tenuousness of the Court’s conflicts and recusal regime. The justices are not bound by a judicial code of conduct, and they make their own decisions to recuse from cases — or not — with no obligation to explain their reasoning. A federal law ostensibly requires the justices to recuse themselves in any case “in which [their] impartiality might reasonably be questioned” and in a variety of specific situations — including, among others, when they know that their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”
Even in the narrowest sense possible, there are clear problems with Thomas’s involvement in the National Archives decision. There is some question about whether Thomas had reason to believe that his wife’s communications with Meadows could be among the documents covered by the Court’s ruling, but if he knew about the messages and thought that they might be among the documents at issue, then he had an obvious conflict due to his wife’s reputational and legal interests in not having her unhinged messages and efforts to subvert the outcome of the election come to light. The fact that Meadows had separately been subpoenaed by the committee — and evidently produced the messages in response before he stopped cooperating with their investigation — would conceivably obviate the conflict only if Thomas actually knew that Meadows had produced them.
The problem involving the Thomases, however, goes far beyond this one case. As one legal ethicist has aptly put it, Clarence Thomas should not be sitting “on any matter involving the election, the invasion of the Capitol, or the work of the January 6 Committee” given what little we already know about his wife’s conduct and are continuing to learn.
The messages, which also suggest that Ginni Thomas was in contact with Jared Kushner, make clear that she is, at a bare minimum, a witness who should be interviewed as part of the Select Committee’s investigation into the efforts by Trump — with the support of a serious contingent of conservative extremists and activists like Thomas — to remain in power despite having decisively lost the election. (Whether that will actually happen is another question entirely.) Some people have questioned whether she has potential criminal exposure, but based on the limited public information so far available, that seems very remote. The committee recently suggested that Trump and others with whom he was working to overturn the results may have engaged in criminal conduct, but that theory was premised on the possibility that Trump knew that he had lost, and Thomas’s messages, outrageous as they may be, are perversely helpful to her on this score, since they suggest that she actually believed the nonsense that Trump and his supporters at the time were saying about the election being stolen from him.
As for Justice Thomas, a man who never should have been confirmed in the first place, there are few good or plausible options to deal with the mess that he and his ridiculous wife have foisted on the country. There is no real mechanism in place for the public or for Congress to police the potential conflicts of Supreme Court justices on discrete matters. The justices either have to be conscientious about doing the right thing themselves or be forced into compliance through public or political pressure or through the threat, implicit or explicit, of impeachment. The Republican Party fought for decades to secure a conservative majority on the Supreme Court, so as a matter of political reality, an impeachment effort would almost certainly fail.
That does not mean any of this — not just the text messages but the Thomases’ immersion in conservative political and activist circles — ought to be acceptable. The notion that Clarence Thomas is not aware of his wife’s work and does not generally share her culturally and politically revanchist beliefs — that his work can somehow be fully disentangled from the reality of his life — is extremely difficult to take seriously given the couple’s history and the record uncovered by journalists, regardless of what the two may claim or what Justice Thomas’s defenders may argue. (In fact, in a 2011 speech, Thomas himself said, “We are equally yoked, and we love being with each other because we love the same things. We believe in the same things.”)
For conservative activists and lawyers, this is a feature, not a bug, of their successful political project to secure a majority on the Supreme Court — to stack it with a collection of ideologues and political hacks whose value is so high to the movement that they will either delude themselves into believing the integrity and legal acumen of these justices is beyond reproach or simply pretend that it is. The problem is not just Thomas. No respectable lawyer should have taken the seat that the Republican Party withheld from Merrick Garland, but Neil Gorsuch was happy to fill it after Trump took office. Amy Coney Barrett, a onetime lawyer for the Republican Party, participated in a preposterous and wildly hypocritical push to put her on the Court in the final weeks of the 2020 election with the understanding that she will advance the party’s agenda from the bench. Brett Kavanaugh, at best a shameless liar and at worst an unrepentant sexual assailant, is a permanent stain on the Court whose outrageous and grossly partisan performance during his confirmation hearings was tolerated by Republicans because they know he will reliably support their causes, as he has throughout his career. Samuel Alito tries to defend the work of the Court’s conservative majority by treating us like we are all idiots.
The presence and behavior of these people, on and off the bench, has already thoroughly degraded the status and legitimacy of the Court both in appearance and in reality. Ginni Thomas’s texts are the crudest manifestation of a much larger problem that, at this point, is probably beyond any fix in the foreseeable future.
