Court Ethics and Conflicts

Terry H. Schwadron

Feb. 3, 2022

Inclusion of the signature of Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, among conservatives publicly denouncing the House committee investigating Jan. 6 is rekindling smoldering resentment over a court seen increasingly as partisan.

The letter from conservatives came out in December; a month later, Justice Thomas was the lone dissent in the decision that denied Donald Trump’s request to block release of White House documents to the committee.

Regardless of his position, he took part in the case rather than recusing himself, and therein lies the rub.

As The Washington Post notes, “That vote has reignited fury among Justice Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court.”

By the rules of the federal courts, only each justice decides whether it is appropriate to take part or recuse based on whether impartiality “might reasonably be questioned.” There is no way to appeal such a decision by a Supreme Court justice, as there is for lower courts.

It is more than an innocent question — and one that should have nothing to do with the left-right divides. Prospects for filling the new vacancy on the court are coming replete with all kinds of homilies from expected Republican opponents in the Senate, from Joe Biden’s vow to name a Black woman to concerns about “activist” left-leaning nominees who do not adhere to limits of strict constructionism about the Constitution, even as Democrats call for a court that “looks more like America.”

Freely translated, there is a lot of hot political air blowing about the sanctity of the court, about the role of race and background, about supposed ideological leaning without looking at obvious gaps in ethics and conflict of interest.

Conservative Activist

The ethics question is falling well behind anger or joy over perceived political gains from recent court decisions. As with all politicians these days, that emotion grows out of questions about who is on the court and what they or their families, businesses, investments. We only want justice with whom we agree.

The New Yorker Magazine recently looked at these broader questions about the court and partisan politics. The article reflected a growing concern about the court’s low public-approval ratings, the continuing discussions about changing the makeup of the justices and the argument from Chief Justice John G. Roberts Jr. offered in his recent year-end report on the judiciary to leave the court alone to solve its own issues.

It also focused attention on Justice Thomas and his wife, Virginia or Ginni, and her long-time, vocal involvement in conservative politics.

Last fall, it noted, Justice Thomas, used an address at Notre Dame to accuse the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, the justice said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”

The magazine said, “The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.”

Virginia Thomas is a lawyer who runs a small political-lobbying firm, Liberty Consulting, and has been outspoken about abortion, affirmative action, gun rights and Jan. 6, all issues coming before her husband’s definitively conservative court majority. She posted social media notes in support of Donald Trump fans gathering for Jan. 6, though took them down after there was violence.

The Washington Post reported that she had also been agitating about Trump’s loss on a private Listserv, Thomas Clerk World, which includes former law clerks of Justice Thomas, eventually apologizing to the group for causing internal rancor.

The New Yorker noted that she has been active as a director of the Council for National Policy Action, a dark-money group that connects wealthy donors with right-wing figures. She also has advised Turning Point USA, a pro-Trump student group that sent busloads to Washington for Jan. 6.

In 2019, her Crowdsourcers project listed partnership of James O’Keefe, founder of conservative Project Veritas, which has a lawsuit against The New York Times working through the courts. She also currently serves on the advisory board of the National Association of Scholars, a group promoting conservative values in academia, which has filed briefs in the pending Harvard affirmative action case.

Toothless Ethics Rules

According to the Constitution, the sole remedy for misconduct on the Supreme Court is impeachment. This was attempted once, in 1804, but it resulted in an acquittal. Only former Justice Abe Fortas has been forced to resigned in 1969 after disclosures of alleged financial conflicts of interest. Former Justice, William O. Douglas, an environmental activist, quit the board of the Sierra Club, acknowledging that there was a chance the group could be involved in litigation that might reach the court. Even this weekend, Justice Neil Gorsuch is set to headline the Federalist Society’s annual, closed conference, as other conservative justices have done, but not liberal justices. Is it political? The justices say no.

Just recently, Justice Sonia Sotomayor talked from the bench about the “stench” of partisanship on the court’s review of abortion laws. There have been so-far futile proposals in Congress to require a code of ethical conduct by justices and to require financial disclosures from those filing briefs before the court. From time to time, there is talk of distancing politicians from financial trading decisions.

All judges are expected to recuse themselves from any case in which their spouse is “a party to the proceeding” or is “an officer, director, or trustee” of an organization that is a party to a case. The question here is how close Ginni Thomas is coming to that line without being a direct officer, director or trustee of a litigating group.

The magazine quoted David Luban, a professor of law and philosophy at Georgetown, who opined, “If Ginni Thomas is intimately involved — financially or ideologically tied to the litigant — that strikes me as slicing the baloney a little thin.”

It is inevitable that some of the legal cases falling out of Jan. 6 investigations will end up before the Supreme Court. Ginni Thomas’ group has given awards to some of those who are contesting congressional subpoenas, including Mark Meadow, Trump’s chief of staff, or questions of executive privilege, like the documents issue that came to the court in January.

Justice Thomas has recused himself at least once before, from a 1996 case involving a military academy that his son was attending. But the justice has never acknowledged his wife’s political work as a conflict of interest.

Maybe it is time he did.

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www.terryschwadron.wordpress.com

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