Debating when Clarence Thomas should recuse himself is the wrong argument | Bruce Ledewitz

The question really is whether we can trust the justices not to be zealous, partisan fanatics. Some Americans don’t. And that’s the issue

May 24, 2022 6:30 am

WASHINGTON, DC – OCTOBER 21: Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, DC. Clarence Thomas has now served on the Supreme Court for 30 years. He was nominated by former President George H. W. Bush in 1991 and is the second African-American to serve on the high court, following Justice Thurgood Marshall. (Photo by Drew Angerer/Getty Images)

If you’re like me, you have heard a lot about the partisan activities of Ginni Thomas, the wife of  U.S Supreme Court Justice Clarence Thomas, and have wondered whether these activities will or should affect his ability to hear certain high court cases.

Bruce Ledewitz (Capital-Star file)

But, also like me, you may not have clearly understood what the issue is really about.

In the media, voices on the political left have called for Justice Thomas to recuse himself from hearing all the “Jan. 6 cases.” On the other hand, conservative news outlets, like such as Fox News, have barely acknowledged that there is any issue at all.

In an attempt to dispel the confusion, The Cyril H. Wecht Institute of Forensic Science and Law at Duquesne University, where I teach, convened a panel of experts in legal ethics on April 26 to examine the judicial duty to recuse, with special attention to the situation of Justice Thomas.

I learned a great deal from the program, but my conclusion—that there probably are no grounds for Justice Thomas to recuse himself—is entirely my own.

Surprisingly, justices on the Supreme Court, unlike most judges, are not subject to a formal code of ethics. This omission is not as significant as it sounds since, as Chief Justice John Roberts has stated, the general principles binding other judges are generally taken by the justices to be a starting point for them as well. 

The one clearly binding standard for the justices is a federal statute that requires any federal judge to recuse in any matter in which the judge’s “impartiality might reasonably be questioned.” But that standard should not be thought of as a free-floating invitation to political opponents to assert an objection. Rather, “reasonably” is interpreted as a reference to those prevailing standards that bind other judges.

Well, then, how do those standards apply to Thomas?

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There is no real dispute that he should have recused himself from the Jan. 19 refusal of the court to block access by the House committee investigating the Jan. 6 attack on the Capitol to certain White House records, if those records reveal communications from his wife to then-White House Chief of Staff Mark Meadows that are not already known. Instead of recusing, Thomas cast the lone dissent against releasing the records.

The problem is that this standard — against involvement by a judge in any matter directly implicating the interests of a family member—is so well-known and accepted that Justice Thomas undoubtedly concluded that this standard was not implicated in this instance. And there is no indication that the records in question did contain any references to Ginni Thomas. 

What about the more general question of Justice Thomas’s involvement in cases involving matters in which his wife has taken an active role? There are known texts from Ginni Thomas to Meadows strategizing about overturning the 2020 election result; she signed a letter in December 2021 attacking the House Jan. 6 committee; and she actually attended the Jan. 6 “Stop the Steal” rally that was the precursor to the actual attack. (Ginni Thomas was not present at the attack and no one has suggested she, in any way, fomented it.)

Emails show Ginni Thomas asked GOP lawmaker Shawnna Bolick for help overturning Biden’s Arizona win

Doesn’t this mean that Justice Thomas should recuse himself from any case touching on these matters?

It is true that cases that might affect a spouse are sometimes treated as affecting a judge in the same way. At the program, my colleague Ashley London referenced a German case in which a judge recused himself from a case involving a long-time friend of his wife. 

The problem is that recusal is irrelevant to this principle of treating a judge and a spouse as a single entity. For not only could Ginni Thomas not herself serve as a judge in any case involving her activities, she could not engage in such activities at all if she were a judge. Judges are barred from precisely the kind of partisan activity that Ginni Thomas engages in.

So, if the principle is to be that a judge and a spouse are one entity, the solution would not be recusal of Justice Thomas in any case affecting Republican  interests—an impractically large number of cases—but binding all spouses to the standards of judicial ethics.

Maybe there is nothing wrong with a rule like that. But it is not currently the law anywhere in the United States. And such a rule might be considered unfair to spouses who, after all, never signed up to be judges.

But then what of the likelihood that Ginni Thomas discussed all these events and activities with Justice Thomas and urged him to vote in accordance with her views? After all, when Justice Antonin Scalia refused to recuse himself from a case involving Vice-President Dick Cheney after he and Cheney went duck-hunting together, Scalia mentioned that he and Cheney had never had an opportunity to engage in a private conversation. But husbands and wives do have precisely such opportunities.

But here again the rules are already clear. A judge may not discuss anything with anyone involving a case that is, or may come, before that judge. A partisan such as Ginni Thomas presumably has strong opinions on a lot of issues that come before the Supreme Court. Should Justice Thomas then recuse himself in all of them? 

If we assume that spouses will simply break this rule against discussing cases, a lot of judges are going to have to recuse in a lot of cases. 

The real problem is not recusal, but that we now know that Ginni Thomas has a bunch of false and dangerous ideas, including that the 2020 election was stolen, that Arizona and other state legislatures could substitute their own chosen presidential electors for those President Joe Biden had won, and that former President Donald Trump should have done something unconstitutional to overturn that lawful election. People now fear that Justice Thomas shares these ideas.

Would Justice Thomas have supported a declaration of martial law by  Trump in Jan. 2021?

Do other justices feel the same way?

But that just shows that the Thomas issue has nothing to do with legal ethics. The question really is whether we can trust the justices on the Supreme Court not to be zealous, partisan fanatics. I believe we can. But I understand that many people now disagree. We would be better off talking about that directly and not about a distraction such as recusal.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.