Ginni Thomas' texts to Trump aides reopen battle over when Supreme Court justices should recuse

WASHINGTON – A federal appeals court in California was a few months into a blockbuster challenge to the state's ban on same-sex marriage in 2010 when the lawyers supporting the ban made an unusual and gutsy request: They wanted to boot one of the judges off the case because of public comments made by his wife.

The judge was Stephen Reinhardt, nominated to the U.S. Court of Appeals for the 9th Circuit by President Jimmy Carter in 1979. His wife, the longtime director of the ACLU of Southern California, publicly opposed the marriage ban, sought to persuade allies to "join the fight” against it and had tried to intervene in the case in a lower court.

Reinhardt wouldn't budge. 

"Even if it were desirable for judges to control their wives, I did not know many judges who could actually do so," Reinhardt, who died in 2018, wrote in an order denying the request. "Her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them."

More than a decade later, Supreme Court Associate Justice Clarence Thomas is facing a torrent of criticism amid revelations that his wife – longtime conservative activist Ginni Thomas – was in regular communication with at least one top official close to President Donald Trump as the White House tried to convince the public, falsely, that Trump won the 2020 election. 

A growing number of Democrats in Congress, including Senate Majority Leader Chuck Schumer of New York, have said Thomas should recuse from cases involving the investigation into the Jan. 6 riot at the U.S. Capitol. Some Democrats on a House select committee investigating that incident, meanwhile, want to invite Ginni Thomas to voluntarily testify about her communications with the White House.

Experts say the through line that connects the Thomas imbroglio with the battle over Reinhardt's recusal – and other, similar cases – is a system that relies on judges and justices themselves to decide when to bow out. Federal law requires jurists to do so "in any proceeding in which his impartiality might reasonably be questioned," but that language leaves room for interpretation. And the interpretation is made by the judge themselves.

Bio:Who is Ginni Thomas? What to know about Justice Thomas' wife

Rules:Ginni Thomas' revelation she went to Jan. 6 rally puts recusal rules in spotlight

Dems:Justice Thomas should appear before Jan. 6 panel, Blumenthal says

"There's a lack of procedure around recusals at all levels of the judiciary, which I think is problematic," said Amanda Frost, a law professor and judicial ethics expert at American University. "The court should set better systems. It would improve the legitimacy of the court to have the decisionmaker not be the potentially biased individual."

Lower federal courts use a computer system that relies on self-reported information from judges to identify potential conflicts of interest. Under that system, a potential conflict would be flagged and the judge wouldn't receive the case assignment. But the arrangement isn't perfect: The Wall Street Journal reported last year that more than 130 federal judges handled cases involving companies in which they or their families owned stock.

Another difference for lower court judges is that their recusal decisions can be appealed, though experts say they rarely are. That's not the case with the Supreme Court, where it is up to the individual justices to decide. 

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

Scalia: Justices often close to presidents

In another high-profile case raising questions about recusals, the environmental group Sierra Club requested that Associate Justice Antonin Scalia drop from a 2004 appeal it had filed involving then-Vice President Dick Cheney. The group said Scalia was compromised because he had gone duck hunting with Cheney in 2004, flying down to Louisiana with him aboard Air Force Two. 

Scalia balked in a 21-page opinion

"A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling," Scalia wrote. "Many justices have reached this court precisely because they were friends of the incumbent president or other senior officials – and from the earliest days down to modern times justices have had close personal relationships with the president and other officers of the executive."

Virginia "Ginni" Thomas, wife of Supreme Court Justice Clarence Thomas, arrives to watch Amy Coney Barrett take the Constitutional Oath on the South Lawn of the White House in Washington, Monday, Oct. 26, 2020.

If Ginni Thomas was just sharing her own personal views, that would be one thing, ethics experts said. But it's unclear what her role was, who her clients were and whether she benefited financially from the false allegations of widespread voter fraud. Ginni Thomas, who married Clarence Thomas in 1987, heads a lobbying firm called Liberty Consulting. She had worked for the conservative Heritage Foundation. On her website, Thomas describes herself as an "advocate for conservatives and a conservative media talent."

The uncertainty of her role beyond the texts is enough that Thomas should at least recuse in any cases dealing with Jan. 6, said Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for greater transparency in the federal judiciary.

Beyond that, Roth said, it's hard to know. 

"Some of the most interesting stuff is only coming out now," Roth said. "So, who knows how many other shoes will drop?"

There are no cases pending at the Supreme Court dealing with Jan. 6, but there could be in the future. A federal judge ruled Monday that Trump likely "corruptly attempted to obstruct" Congress from certifying the 2020 election in a case dealing with whether the House select committee will review emails from an attorney who supported Trump's cause in late 2020, John Eastman. That case could be appealed. 

There are also criminal cases pending from the Jan. 6 attack that could wind their way up to the high court. 

'Appearance of a conflict’

In one text sent to White House chief of staff Mark Meadows days after the election, Ginni Thomas accused "the left" of "attempting the greatest Heist of our History," according to The Washington Post. USA TODAY has not verified the messages. 

Months later, in February 2021, Thomas wrote a solo dissent in a case in which the Republican Party challenged changes to Pennsylvania's mail-in ballot laws. Thomas acknowledged the changes did not appear to affect the outcome of the election, but he also raised questions about the reliability of mail-in voting, echoing some of the same arguments raised by Trump.

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. He did not explain his position in that case. 

In one sense, Clarence and Ginni Thomas are a prominent example of a married couple leading independent careers in Washington, said Charles Geyh, a professor at Indiana University's Maurer School of Law whose teaching and writing focuses on judicial conduct and ethics.

However, Geyh said, because the texts showed Ginni Thomas was involved in efforts to help Trump remain in office, they raise questions about what Justice Thomas knew about that effort.

"When you are actively involved in the events ... the ability of the judge to separate from that is much harder," Geyh said. "I think a reasonable person would look at it and say, 'She had to be speaking about this with him.'"

"To me," he said, "this crosses the line."

Ginni Thomas has long pushed back on the criticism. 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 – and is frequently alone in dissent.

In an interview with The Washington Free Beacon this month, Ginni Thomas said she and her husband 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 of 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 said at 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." 

Republicans scoffed at the idea that Thomas should recuse from cases because of his wife's texts. 

"It's just ridiculous," Sen. John Cornyn, R-Texas, told reporters. "I just think this piling on to family members of public figures is just an unfortunate development."

Paul Schiff Berman, a law professor at George Washington University, said the clearest case for recusal would involve cases connected to the Jan. 6 committee proceedings. Criminal cases, he said, might be a closer call if they raise legal issues that are separate from the general political aims of his wife. 

"Spouses should be able to lead independent lives, and so Ginni Thomas' activism does not, in general, require Justice Thomas' recusal," Berman said.

But this is different, Berman said, because the texts suggest she was "deeply involved in the Trump administration's efforts" to undermine the election. 

Thomas, Berman said, "should recuse himself from any case involving the insurrection or the work of the commission because it creates an appearance of a conflict of interest." 

Contributing: Bart Jansen, Dylan Wells