Ginni Thomas is at it again. On Saturday, the conservative activist and lobbyist—and spouse of Supreme Court Justice Clarence Thomas—shared a meme on her Facebook page accusing Democrats of engaging in “a silent coup, not just against Trump, but also against the very premises of our constitutional republic.” The meme, which came from the Citizens [sic] Mandate, featured an image of George Soros, the liberal donor often at the center of anti-Semitic conspiracy theories about malign “globalist” machinations. Americans, the meme declared, “will decide if they want to reward those who are engaged in [the] silent coup” at the ballot box in November.
Ginni has long been on the far-right fringe of the conservative movement, but in recent months, she’s escalated her rhetoric against perceived political enemies. She has alleged that President Barack Obama “rigged” (unsuccessfully) the 2016 election for Hillary Clinton and that Robert Mueller is “going to fabricate whatever fake scandals [are] needed to take down Trump.” But by sharing this “coup” language, Thomas has taken an aggressive new stance—one that yet again creates thorny ethical issues for her husband.
Let’s say a 2018 race were contested all the way to SCOTUS. In light of the fact that, as part of her lobbying work, Ginni has claimed that Democrats are engaged in a “coup” that must be thwarted to save “our constitutional republic,” should Clarence Thomas recuse? Under federal law, the answer is likely yes. And if Clarence Thomas served on any other court, Ginni Thomas’ posts might compel him to. But because he sits on the Supreme Court, there is simply no way to make him respect his ethical duties.
It’s often claimed that Supreme Court justices do not follow any code of ethics, but that’s not quite right. In theory, the justices are supposed to follow the same code of conduct to which all other federal judges must adhere. Moreover, federal statutes governing recusal and financial disclosure apply to all federal judges, including the justices. The problem is one of enforcement: There is currently no mechanism to force the justices to comply with these rules. If a lower court judge improperly declines to recuse herself from a case, a litigant can ask a higher court to adjudicate the dispute. But SCOTUS is, by constitutional command, the highest court in the land. There is thus no higher authority to step in when the justices do not adequately police themselves.
Congress has considered various solutions to this predicament. In 2011, House Democrats pushed a bill that would create a new court, made up of judges or justices, to weigh in on SCOTUS recusals. The late Democratic Rep. Louise Slaughter repeatedly introduced bills to increase transparency among the justices by declaring them bound to the ethical rules of the federal judiciary. Senate Democrats have introduced a similar measure that would obligate the justices to follow the judicial code. Sen. Elizabeth Warren touted the legislation after Justice Neil Gorsuch spoke at Trump International Hotel to a group bankrolled by the same foundation that helped to fund litigation against public sector unions in a case before the Supreme Court.
Yet as Brookings’ Russell Wheeler has pointed out, were any of these efforts to become law, they would immediately encounter several hurdles. First, the Constitution commands the establishment of “one Supreme Court”; if Congress created another court with authority over SCOTUS, it could arguably create a second supreme court, in contravention of the Constitution. Second, only parties to a case may request a recusal—which they almost never do at the Supreme Court. Would that change if some body had power to enforce recusals? Maybe, but it’s no sure thing given the high stakes. If the recusal challenge fails, after all, the targeted justice may be embittered toward the party that asked him or her to sit out the case. (Virtually all calls for a justice’s recusal in recent years have been made by outside groups eager to highlight perceived conflicts of interest. When the Sierra Club asked Justice Antonin Scalia to recuse from a 2004 dispute, he responded with a howl of defiant rage.)
These obstacles are, of course, hypothetical, and they may be surmountable, but it doesn’t much matter so long as a majority of Congress remains indifferent to SCOTUS’s ethics. Controversies flare up now and then, like when Scalia accepted lavish trips from private sponsors or when Thomas did not recuse himself from Affordable Care Act litigation despite his wife’s fervent lobbying against the law. For the most part, though, Americans don’t appear especially worried about the justice’s relatively laissez-faire self-regulation.
Ginni Thomas seems almost determined to change that. As I reported in April, her activism has largely shifted from direct political lobbying to Facebook—where, on her verified page, she has shared memes attacking Obama, Clinton, Mueller, David Hogg, Andrew McCabe, DACA recipients, the Girl Scouts, and the American Civil Liberties Union. She has also touted a meme blaming gun control for the Holocaust featuring a photo of the famous shoe exhibition at the Holocaust Museum. And now she has accused Democrats of engaging in a “coup” to bring down Trump and “our constitutional republic.”
Ginni’s views should not be automatically imputed to her spouse. Yet her very public stances, which ultimately promote her political lobbying firm, raise a legitimate concern under the federal recusal statute—which, again, purports to cover the justices. That law directs the justices to recuse themselves from any case in which “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
Even a narrow reading of that statute indicates that the Thomases may have crossed an ethical line. Gabe Roth, executive director of the pro-transparency group Fix the Court, told me that “it’s not difficult to imagine that Justice Thomas’ votes in certain cases over the years may have translated into more consulting work” for his wife—“even as the judicial ethics statute dictates that a justice ‘shall disqualify himself’ from proceedings that could impact his spouse’s livelihood.” Ginni Thomas, for example, raised a substantial amount of money lobbying against the ACA. Her husband then voted to strike down the entire law.
The spouses of Supreme Court justices are assuredly allowed to hold political opinions. But Ginni’s extreme activism is her livelihood. She doesn’t just have views—she has an “interest that could be substantially affected by the outcome” of Supreme Court cases. Under our current ethical regime, though, there would be no way to force Clarence Thomas to even consider recusing himself from a case that has consequences for his wife’s bottom line. The system is badly broken. And its flaws allow Clarence to enact from the bench the same political agenda that his spouse relentlessly promotes. What a coup.