Ginni Thomas' revelation she went to Jan. 6 rally puts squishy Supreme Court rules in spotlight

• Ginni Thomas has questioned whether the 2020 election was fraudulent, but said she had no part in the riot.
• The situation has drawn attention to the rules around Supreme Court recusals, or when justices sit out a case.
• Republicans are expected to press Supreme Court nominee Ketanji Brown Jackson about whether she'll recuse herself in a case involving Harvard.

WASHINGTON – The revelation that Virginia "Ginni" Thomas, the wife of Supreme Court Justice Clarence Thomas, attended President Donald Trump's rally ahead of the attack last year on the U.S. Capitol has once again opened the couple up to scrutiny and raised questions about when members of the high court should recuse themselves.

Ginni Thomas acknowledged in an interview with The Washington Free Beacon this week that she attended the rally outside the White House on Jan. 6, 2021, where Trump whipped up a crowd with false allegations of voter fraud before a group of his supporters descended on the Capitol as lawmakers certified President Joe Biden’s victory.

A longtime conservative activist, Ginni Thomas said she left the rally before the president took the stage – and had no part in the subsequent riot at the Capitol. But the acknowledgement was the latest example underscoring the unusual dynamic between Justice Thomas, who has weighed in on several cases held over from the 2020 election, and his wife, who has questioned whether the election was fraudulent.

When the Supreme Court earlier this year allowed a House committee investigating the Capitol attack to receive Trump administration documents, Thomas was the only justice on the nine-member court to publicly oppose the move. 

In a blistering dissent in another case last year, Thomas disagreed with the court's decision not to take up a challenge to the expanded use of mail ballots in Pennsylvania and raised questions about the reliability of mail-in voting, echoing some of the same arguments raised by Trump.

Ginni Thomas has vigorously pushed back on the criticism and court observers note that Justice Thomas has been a leader of the conservative wing for decades – long before Trump emerged as a force in the Republican Party. In the interview with the Washington Free Beacon, Ginni Thomas said the two keep their professional lives separate. 

"Clarence doesn’t discuss his work with me," she said, "and I don’t involve him in my work."

Thomas, like other justices, has argued that politics do not play a role in the decision making on the nation's highest court. The biggest misconception about the court is when the media portrays outcomes as being based on personal preferences on issues such as abortion rather than the law, Thomas told Notre Dame University last year. 

“I think that they think that we make policy,” Thomas said. “They think you're for this or for that, they think you become like a politician. And I think that's a problem." 

A Biden commission studied the court and reviewed options for making recusals – when a justice withdraws from a case because of a conflict of interest or lack of impartiality – more transparent. And lawmakers have proposed legislation to force justices to explain their recusals.

“Basic judicial ethics, federal law and Supreme Court precedent require justices to recuse in a number of situations, yet some of the justices refuse to heed those requirements," said Sen. Sheldon Whitehouse, D-R.I. "It contributes to the deep rot at the Court. The justices need to address it or their credibility will tumble even further."

The debate over Supreme Court recusals

The latest acknowledgment of Ginni Thomas' attendance at the rally drew attention to the debate over recusals, a murky process that has drawn criticism from watchdog groups for years. The scrutiny has been bipartisan, directed at justices who were named by Republican as well as Democratic presidents.

The issue of recusals was thrust back into the fore recently in connection with Biden’s nominee to the Supreme Court, U.S. Circuit Judge Ketanji Brown Jackson.

Jackson, who appears to be on a glidepath for confirmation to the seat being vacated by retiring Associate Justice Stephen Breyer, has faced questions over her role at Harvard University and whether she should recuse from an upcoming blockbuster case involving affirmative action at the school. Jackson serves on Harvard's board of overseers.

Supreme Court watchdogs have argued for years that additional clarity is needed for when justices should recuse – and that push has received some bipartisan support.

“In the rare instance when the justices actually talk about why they do or don’t recuse in certain close calls, they give completely different answers from one another,” said Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for greater transparency in the federal judiciary.

When do justices recuse themselves and how often do they do it?

Federal law requires justices to disqualify themselves “in any proceeding in which his impartiality might reasonably be questioned.” The law goes on to cite specific circumstances for recusal, including situations in which the justice has “a personal bias or prejudice concerning a party” or in which the justice or a spouse “has a financial interest in the subject matter in controversy.”

But there’s a good deal of wiggle room in that language. The decisions by justices about whether to recuse themselves from cases can't be challenged in court, although the circumstances can be contentious.

In 1993, the court issued a statement of policy signed by seven of nine justices that said when relatives of justices are lawyers, recusals are only required when the lawyer participated in an earlier stage of litigation or was a partner of a firm. Recusals were only required when the lawyer participates in a case at the high court.

Justices recused themselves from decisions about whether to hear cases 200 times per year on average from 2015 through 2020, according to a presidential commission Biden appointed to study the court. Justices averaged about four recusals per year at the stage of deciding cases, according to the commission.

Roth’s group, Fix the Court, tracks when a case arrives at the court that a justice participated in, sometimes as a lower-court judge or as solicitor general, the government official who represents the federal government at the Supreme Court. 

Because recusal decisions can’t be challenged, justices rarely explain their reasoning. For example, Breyer routinely recuses himself from cases involving his brother, a U.S. District Court judge in California. Chief Justice John Roberts recused himself from a 2020 case involving the Smithsonian Institute – perhaps because he serves as a chancellor of the institution.

But that made a couple of cases where justices offered lengthy explanations more remarkable.

In 1981, then-Associate Justice William Rehnquist recused himself from a case lingering from the Watergate era, as he had in several other cases, because of former Attorney General John Mitchell’s personal participation in it, rather than as a lawyer. Rehnquist had worked at the Justice Department with Mitchell before being appointed to the court.

In 2004, the late Associate Justice Antonin Scalia issued a 21-page memo after participating in a case involving Vice President Dick Cheney. The Sierra Club, a participant in the case, filed a motion for Scalia to remove himself because he went hunting with Cheney. But Scalia refused, explaining the case hadn’t arrived at the court when the trip occurred.

“It was not an intimate setting,” Scalia wrote of about 13 hunters on the trip. “Of course we said not a word about the present case.”

Republicans criticized the late Associate Justice Ruth Bader Ginsburg's involvement in cases dealing with President Donald Trump’s administration after she described him as a “faker” during the 2016 presidential campaign and said she couldn’t “imagine what the country would be with Donald Trump as our president.”

Roth’s group has found three current justices who own individual stocks – Roberts, Breyer and Associate Justice Samuel Alito – have in recent years failed to recuse themselves from deciding petitions to the court in which a company whose shares they own is a party.

“It’s just unforced errors that make people doubt the integrity of the judiciary,” Roth said.

Proposals for making recusals more transparent

The debate over potential remedies to make recusals more transparent have focused on financial issues rather than the potential for political influence like in the Thomas case.

In reviewing options for improving how recusals work, the Biden commission outlined proposals such as requiring justices to state their reasons for recusing, establishing a procedure for another justice or the court to review recusal decisions and reforming recusal laws to make it easier to avoid financial conflicts.

Justin Driver, a professor at Yale Law School who served on the commission, noted that recusals occurred in 10% of the decisions about whether the high court will hear a case involving a Forbes 100 company. Driver called that a “reasonably large number.”

Driver suggested solutions could require justices divest investments when conflicts arrive or prohibit justices and their families from owning individual stocks. “I don't believe that this would succeed in transforming the judicial oath into anything like a vow of poverty,” Driver said.

Lower federal courts use a computer system to catch potential conflicts of interest, but even that system has drawn scrutiny. The Wall Street Journal reported last year that more than 130 federal judges had overseen cases involving companies in which they or their families owned stock.

Rep. Darrell Issa, R-Calif., sponsored legislation in 2018 that would have mandated a code of conduct at the Supreme Court and required the justices at least explain their recusals. That bill drew bipartisan support, and some provisions have worked their way into subsequent proposals.

The sweeping voting rights legislation House Democrats passed last year included a code of conduct for the Supreme Court, but that bill failed to gain traction in the Senate.

Roberts asserted in a report in 2011 that Congress has no constitutional authority to impose a code of ethics on the Supreme Court, only on lower federal courts. Associate Justice Elena Kagan told lawmakers during a hearing in 2019 that Roberts was weighing a code of conduct for the high court, but it's not clear what, if any, progress has been made in the three years since.

Jackson, nominated to fill the vacancy created by Breyer’s retirement, is almost certain to face questions about whether she will recuse in the Harvard case.

The Supreme Court announced in January that it would decide whether the use of race in the admissions process at Harvard University and the University of North Carolina violates civil rights law and the Constitution, reviving a controversial legal debate over affirmative action that has been years in the making. That case will likely be heard in the fall after Jackson would be seated.

Former Sen. Doug Jones, D-Ala., who is guiding Jackson through her Senate confirmation, said Jackson would wait for her hearing to address the matter.

“I don’t really see a drawback for the recusal,” Roth said of Jackson’s situation. “I think it would send an incredibly strong signal.”

Concerns about the Supreme Court appearing political

Legal observers and even Supreme Court justices fret that their decisions could lose authority if viewed as political rather than based on interpreting the law.

Approval of the Supreme Court slipped to 40% in September, a record low and down from 49% in July, according to a Gallup poll taken after the court declined to block a Texas abortion law. 

A C-SPAN poll released Tuesday found 72% of voters support a code of ethics for the Supreme Court.

“Trust in the federal government has taken a powerful hit in recent years,” said Robert Green, CEO of Pierrepont Consulting & Analytics, which conducted the poll.

Concerns about politicizing the court range across the political spectrum. In a December case involving a Mississippi abortion law, Associate Justice Sonia Sotomayor questioned whether the public would view the court’s actions as political.

"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Sotomayor asked.