It seems the wider world is becoming acquainted with the ethical disaster that is the conservative power couple Supreme Court Justice Clarence Thomas and his wife, Virginia “Ginni” Thomas. A few weeks ago, The New Yorker published an excellent exposé by Jane Mayer of Ginni’s long history of conservative political activism on behalf of causes and even litigants who appear before her husband’s court. For people who hadn’t been following the couple for the past 30 years, the piece was a revelation.
Long-term court watchers have been aware of the problem since at least 2000. That’s when Ginni was employed vetting potential staff and cabinet appointments for George W. Bush while the result of the election was in dispute. Eventually, the Supreme Court anointed Bush the winner of that election, with Ginni’s husband, Clarence, casting one of the deciding votes in the 5-4 ruling.
But while it’s fun to dunk on Ginni, a right-wing social gadfly who has inserted herself on the wrong side of nearly every issue, it’s important to remember that the corrupt actor here is Clarence. Ginni Thomas is under no moral or ethical obligation to behave better than any other right-wing culture warrior. America doesn’t pay her salary. If she wants to spend her time fanning the flames of insurrection and drawing up enemies lists for Donald Trump, she is free to do so.
It is her husband who has been elevated to a position of public trust. It is her husband who has held himself out as an impartial arbiter of justice. It is her husband who has been morally unfit for the Supreme Court every single day he’s been on it, and he is the one who should be investigated and called on to answer for his ethical failings.
A report last week in Politico that hints at secret correspondence between the Thomases and Florida Governor and Covid pitchman Ron DeSantis illustrates why it is ultimately Clarence who is the ethical structure fire in this relationship. According to the website, documents turned over to a government watchdog group include an e-mail from Ginni to DeSantis. In it, she is trying to get him to speak to a group of “conservative patriots” (whatever that means) and she needs to remind DeSantis who she is. She tells him that she’s interviewed him before, saw him at a state dinner, and “my husband has been in contact with him too on various things of late.”
It’s an interesting e-mail. On the surface, it sounds like Ginni is trying to get DeSantis to do what she wants with the age-old “Do you know who my spouse is?” ploy. It’s worked for her before. Indeed, in Mayer’s piece, she relates a story in which Trump gave Ginni an audience to present her enemies list, and Trump apparently said that he never would have met with her but for the fact her husband sits on the Supreme Court. It’s gross and, frankly, pathetic, but I’m sure a version of that e-mail is sent around Washington, D.C., roughly 100 times an hour.
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Again, the problem is not Ginni Thomas’s invoking her powerful husband to advance her own interests; the problem is with Clarence Thomas’s habit of honoring the influence checks his spouse is spreading around town—or, at a minimum, his appearance of honoring those checks. Lest you forget, Florida was one of 19 states that recently sued the Biden administration over its vaccine mandates for health care workers at facilities that receive Medicare or Medicaid funding. DeSantis has been one of the most outspoken opponents of vaccine or mask mandates. His state and the other pro-Covid states lost their lawsuit at the Supreme Court, but Thomas was one of the three justices who agreed with Florida and dissented from the opinion.
I wonder what DeSantis and Thomas have been talking about.
It’s highly inappropriate for a governor of a state involved in active litigation in front of the Supreme Court to be in contact with a justice who is hearing that case. There are entire canons of law that limit what’s called “ex parte communication.” In essence: Judges cannot talk privately with people who have business before their court unless the other litigants are present. This isn’t about holding judges to a higher standard—it’s legal ethics 101. DeSantis might not be named in the lawsuit his state filed against the government, but it’s wrong for Thomas to have any contact with him, even if all they were talking about was which Sesame Street character frightens the snowflakes on their side the most.
I say “inappropriate” and “wrong,” but I can’t say “illegal,” because the Supreme Court is the only court in the United States that operates without ethics rules. Clarence and Ginni Thomas have been able to get away with their decades-long abuse of influence and power because there is no law governing when Supreme Court justices should recuse themselves from cases. Each justice makes that decision based on their own conscience, and Clarence Thomas—who is on the court despite allegations of sexual harassment—evidently doesn’t have one. Thomas refuses to recuse himself from any case despite his wife’s advocacy on behalf of litigants before him, and it’s impossible to know how many secret conversations he’s had with people who have interests before the court—such as the ones he’s apparently had with DeSantis.
Understand, every time a Supreme Court justice does recuse themselves from a case, they’re doing so voluntarily. Justice Elena Kagan, for instance, used to be the solicitor general for the United States under President Barack Obama. After she was appointed to the Supreme Court by Obama, she was confronted by a number of cases that she had worked on as an advocate. She recused herself from all those cases out of a concern with the appearance of impartiality. But she didn’t have to; under the current rules, nobody could have forced her to.
We need actual laws defining the manner in which Supreme Court justices are expected to conduct themselves. They should not be able to hear cases if they have a financial connection to one of the litigants. They should not be able to hear cases if a close family member works for one of the litigants, including one of the branches of “the government of the United States,” which is often a party to Supreme Court cases. They should not be allowed to have ex parte communications with any of the litigants, including litigants who work for governments with business in front of the court, as was the case in the DeSantis situation.
And that’s just the basic stuff, the rules that every judge in the country except those on the Supreme Court have to abide by. But I think we should push ethics requirements farther. I think we should bar Supreme Court Justices from participating in fundraising activities or speaking at fundraisers. Last week, Neil Gorsuch carried on the long tradition of conservative Supreme Court justices speaking at the Federalist Society’s annual conference. Gorsuch, Samuel Alito, alleged attempted rapist Brett Kavanaugh, and, yes, Clarence Thomas, have all given speeches at the event before. But I think the prohibition should extend beyond political action groups (the Federalist Society calls itself a “debating society,” which just proves my point that prohibiting a specific type of organization is something corrupt justices could easily work around). I don’t think the justices should be allowed to do a fundraiser for BeNiceToPuppies.org. Kittens should have confidence in the courts too.
The real game changer, however, would be requiring Supreme Court justices to recuse themselves from any cases involving the executive branch that appointed them. I think a new justice should have to sit out all the “United States v. [Whoever]” cases that come before them while the president who appointed them is still in office. The idea that a president might pick the justices who could then go on to rule them the winner of a disputed presidential election is intolerable. Sure, the three Trump-appointed justices rejected Trump’s scurrilous attempts to subvert the 2020 election, but his legal claims were bad and borderline incoherent. The next Republican who tries to install himself as a dictator will not be as incompetent as Trump, and letting that Republican pick their own judges shouldn’t ever be a thing.
Congress has the authority to legislate some ethical guidelines for the Supreme Court, and Congress is the only body that can start an impeachment investigation into the corruption of individual justices. But it will not act. When Republicans are in control, they probably like the influence-peddling Ginni Thomas engages in: She’s working to advance their agenda, after all. When Democrats are in control, they seem interested neither in holding the justices accountable for past transgressions nor in reforming the court to stop future ethical failures.
Absent congressional action, the only person who could really do anything about the Thomases would be Chief Justice John Roberts. He doesn’t have the formal power to, say, order Thomas to recuse himself from cases, but he could certainly make it known to Thomas that he should cut it out, or publicly encourage Congress to act. But Roberts has decided to go in the other direction, turning a blind eye to corruption in the judiciary and arguing that the court can police itself, even though nobody has policed Thomas for 30 years.
And that is how Clarence and Ginni Thomas get away with it. The Thomases act unethically because there are no ethical rules to stop them. They brazenly flout propriety because their conservative friends do the same thing with impunity. Congress could put a stop to this, but it won’t.
Until that happens, we will continue to have nine unelected, unaccountable people who can go as far as to veto health and safety regulations if state governors are nice to their spouses over e-mail. Welcome to the pathetic excuse for a “republic” we’ve been living in this whole time.
