Read Dahlia Lithwick on how the justices express their politics outside of court.
Virginia Thomas has many ardent defenders. In fact, it’s hard to find anyone who doesn’t think that Ginni, as everyone calls the wife of Justice Clarence Thomas, has a perfect right to launch herself headlong into the Tea Party movement with the founding of her own group, Liberty Central Inc. As Thomas herself said, pointing out that the Supreme Court’s ethics office had approved her new endeavor, “I did not give up my First Amendment rights when my husband became a justice of the Supreme Court.”
In the end, this has turned into the kind of roll-out Thomas couldn’t have planned better. No one much noticed when Liberty Central opened shop in February. Now Thomas and her allies get lots of publicity as the champions of wife-activists who can righteously breathe fire at the left for hypocrisy. On its Web site, Liberty Central is thanking its supporters for the “many E-mails, calls, and tweets of support we’ve received in the last few days. We’re overwhelmed by the magnitude of the response.” Forging ahead, doubters be damned, is a stance perfectly tailored to the Washington role that Thomas has long played. She is part of a cadre of strong-minded, smart, skilled Republican women who run their own shows while rejecting the politics of all those other smart, strong-minded women who identify themselves as feminists. It’s possible that however permissible, Thomas’ latest choice of tactics for a cause she has long served isn’t good for the court’s institutional image. But never mind, because at the moment, all the dragon-breathing makes for a great show.
On Sunday, the Los Angeles Times offered itself up for this week’s conservative blasting of the mainstream media with a story that ventured the hypothesis that Thomas’ nonprofit “is likely to test notions of political impartiality for the court.” The right immediately blasted the story as a hit job. Examples abound, but the flame-throwing award goes to Andy McCarthy on National Review’s the Corner. Though he hasn’t always been solicitous of the challenges active husbands pose to working women, he came to Thomas’ aid for daring “to have your own career” (while finding an excuse to attack Justices Ruth Bader Ginsburg and Sonia Sotomayor, DoJ appointee Dawn Johnsen, and Justice Department lawyers who once represented Guantanamo detainees).
The media and the left, meanwhile, mostly confined themselves to a slight raise of the eyebrow. In NPR’s docile story, ethics expert Steve Gillers opined that “the spouse of a judge can have a full political life and take positions.” The Washington Post gave lots of space to describing Liberty Central in its own terms. (Amid the unassailable parts about fighting for liberty, the group pledges to fight “against the liberal Washington agenda.”) Talking Points more amusingly showed the group using stock photos of smiling African-Americans and Asians to give it a sheen of minority support. Jeffrey Toobin says that Ginni Thomas is violating no code of ethics. So does our own Dahlia Lithwick.
Let’s run through the judicial-ethics question. Justice Thomas wouldn’t be permitted to found Liberty Central himself, but his wife is not him. In future cases, the justice will be expected to recuse himself from a case in which Liberty Central is a party or takes a position before the court. Since the conflict-of-interest rules for judges are largely about avoiding the appearance of financial self-dealing, Justice Thomas should also recuse himself from cases in which one of the parties is a company or trade group that has made a sizeable contribution to Liberty Central.
An important wrinkle: As a 501(c)(4), the group can raise unlimited money for lobbying without identifying all its donors. So how will we know whether Thomas is taking himself out of every relevant case? Liberty Central should err on the side of disclosure—let’s see if it does. This is particularly salient because Justice Thomas, and Justice Thomas alone, will make the decision about whether to sit out a case. Recusal calls by the individual justices aren’t reviewed by the court as a whole, or any other body. “That’s the real problem,” Stanford law professor Deborah Rhode says. “There’s no structure for oversight. I’d say most of the time judges do the right thing, but when they don’t, there’s very little you can do about it.”
In lambasting the LAT for raising a question about Ginni Thomas’ Tea Party affiliation, commenters on the right have pointed out that no one worries over Judge Marjorie Rendell’s marriage to Pennsylvania Gov. Ed Rendell, or Judge Stephen Reinhardt’s to Ramona Ripston, who is head of the Southern California branch of the American Civil Liberties Union (she will retire next February). * It’s not really a mystery why those marriages haven’t generated headlines—the judges have recused themselves when it was called for, and their jobs are lower-profile. (Quick, which courts do they sit on? If you said the 3rd Circuit and the 9th Circuit, you pass the bar.) Judge Rendell doesn’t hear cases when a party has made a donation to her husband’s campaign unless both sides waive objections. She also doesn’t go to political events with the governor. Reinhardt recuses himself from cases brought by the ACLU of Southern California.
In certain cases, these recusals surely hurt Ripston’s side. “They always ask me,” Ripston told the LAT when she retired, “why I couldn’t have married one of the conservatives and taken that vote away.” She is talking about Reinhardt’s policy of recusal, not her control over him, contra McCarthy. Since Liberty Central does political rather than legal activism, Ginni Thomas probably has less reason to fear that she’ll cost her cause her husband’s vote.
Still, it’s the Supreme Court we rely upon most for the nonpartisan, even Olympian image of the judiciary that is supposed to shore up faith in our democracy. And so Ginni Thomas’ Tea Party affiliation means something different for our perception of untainted justice. The code of ethics aside, it’s at once utterly partisan and entirely unsurprising. Ginni Thomas has also worked for House leader Dick Armey and the Heritage Foundation. The Tea Party and its rhetoric about tyranny may seem an odd landing place for an insider conservative stalwart, but in this shake-it-up moment, Liberty Central is a natural next step. Of course it makes Justice Thomas seems like a creature of politics rather than remote neutrality when his wife gushes about Rush Limbaugh and Glenn Beck and lobbies for conservative causes. Granted, he is not her, but he is one tiny step away. On the other hand, of course Clarence Thomas believes in the deeply conservative values his wife works so hard to advance. Along with Antonin Scalia, he is the court’s most reliably right-wing vote. His autobiography was shot through with rage against Democrats and liberals. If he and his wife influence each other’s views, it’s within a very small space of mutual affinity and agreement. What does her new Tea Party tell us that we didn’t already know?
Almost nothing, if you read Laura Blumenfeld’s great 1991 Washington Post profile of Ginni Thomas. Then as now, people wondered what Thomas’ work said about the views of her husband, who had been tapped but not yet confirmed for the Supreme Court. The two decades since have produced no surprises. In the 1990s, Thomas was close to two other activist-wives, the late Barbara Olson and Ricky Silberman, the late wife of Judge Laurence Silberman, who founded the Independent Women’s Forum, the group that made anti-feminism trendy. This is Thomas’ world—one in which women build their careers opposing the usual feminist version of equality.
And so it makes sense that as a lawyer for the U.S. Chamber of Commerce, Ginni Thomas led the fight against the Family Medical Leave Act. It also makes sense that Clarence Thomas voted to strike down that law in 2003. (He lost, 6-to-3.) His wife didn’t have to sway him—he would never have voted otherwise. “I’m married to a federal judge and he influences me and I influence him,” Ricky Silberman said in that 1991 profile. “That’s part of being close to someone—we certainly have discussions about cases.” The Thomases, she continued, are “great intellectual soul mates who talk a lot about ideas and social policy.”
Right—and who work toward the same goals, each in his or her own way. As Eugene Volokh writes on his blog, the more women take leadership positions, the more two-career couples will hit a juncture like this one for the Thomases, when the pursuit of an overlapping agenda makes waves and requires accommodating. But not to worry. If they’re as good as Ginni at turning the attention into a weapon, they have nothing to fear.
Correction, March 18, 2010: The original sentence incorrectly said that Ramona Ripston had already retired. (Return to the corrected sentence.)