Politics

Is Clarence Thomas Really Untouchable?

Clarence and Ginni Thomas share a laugh while seated next to Mitch McConnell.
Supreme Court Justice Clarence Thomas sits with his wife, conservative activist Virginia Thomas, while he waits to speak at the Heritage Foundation in D.C. on Oct. 21. Drew Angerer/Getty Images

Ginni Thomas is the wife of Supreme Court Justice Clarence Thomas—but far more than that, she’s a D.C. power broker. She runs a consulting firm that boasts it can “open any door in Washington.” She’s launched the careers of right-wing media stars like Dan Bongino and has a knack for building up ideological networks. In the years since her husband was confirmed to SCOTUS, Ginni Thomas has made herself a key part of the conservative infrastructure in D.C. For example: A few years ago she started the Impact Awards, an annual luncheon celebrating conservative icons as well as the movement’s more obscure foot soldiers. In 2019, the luncheon was held at the Trump International Hotel; toward the end of the ceremony, she gave an award to Mark Meadows, who was then a congressman but, within a few months, would become the chief of staff for Donald Trump. Last week, the Select Committee investigating Jan. 6 got ahold of some of Ginni Thomas’s text messages, sent directly to Meadows in the wake of the 2020 election. In these texts, Thomas urges Trump and his supporters to keep Joe Biden out of office and encourages them to “stop the steal” with the fervor of a zealot. Mark Joseph Stern, who covers courts and the law for Slate, has followed Ginni Thomas for a while—and he thinks these texts may be just the beginning. On Wednesday’s episode of What Next, I spoke with Stern about what role Ginni Thomas plays in Washington, and what it means for the Supreme Court. Our conversation has been edited and condensed for clarity.

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Mark Joseph Stern: She has the ear of some of the most powerful people on the American right. Folks toward the top of the House Republican caucus recognize that they need to make friends with Ginni Thomas in order to continue their rise.

Mary Harris: Ginni Thomas has been problematic for a while, but I’m wondering if you think these texts change something.

For a long time, there has been this concern that there’s overlap between Ginni Thomas’ and Clarence Thomas’ work. We know, for instance, that Ginni Thomas is involved with various organizations that filed briefs before the Supreme Court. But until now, there hasn’t really been a kind of smoking gun where Clarence Thomas has cast a vote that directly protects or favors Ginni. Now we have evidence that he voted in at least one case in a way that would have shielded Ginni Thomas from legal scrutiny: He voted to block the Jan. 6 subcommittee from obtaining a bunch of Trump documents about the capitol insurrection, documents in which Ginni Thomas may well appear. That’s the first time ever, as far as I’m aware, that you can draw a direct line between Clarence Thomas and his legal work and Ginni Thomas and her political work. That, I think, is a really big deal.

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You cover the Supreme Court. Is it normal behavior for a Supreme Court spouse to be giving out awards to Washington insiders, like with Mark Meadows?

Of course it isn’t. The Supreme Court is actually required by federal law to retain this appearance of impartiality, and there is a federal statute that requires justices to recuse when their impartiality could be reasonably questioned. But there’s no one to enforce that rule, so the justices can just ignore it. It is highly unusual, really unprecedented to have the spouse of a justice be this engaged in political activism. I mean, just to give you an example, John Roberts’ wife was long involved in anti-abortion activism. When Roberts joined the Supreme Court, she stopped because she understood that that is like the ground rule for being the spouse of a justice. Ginni Thomas and Clarence Thomas totally reject that idea and refuse to directly address the accusations of partiality and conflicts of interest and unethical conduct.

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In Ginni Thomas’ texts, at certain points she is offering up conspiracy theories as fact to the White House. I’m wondering if you can translate those for me and tell me exactly what she’s referring to and why it’s so notable.

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The easiest one to translate is Ginni Thomas texting Mark Meadows, “Release the Kraken and save us from the left taking America down,” which directly takes from Sidney Powell. So even after Trump disavows Powell, Thomas is still defending her. She also sends Mark Meadows this article and quotes a passage from it: “Biden crime family & ballot fraud co-conspirators are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

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She said that as fact. What is this about?

As NBC’s Ben Collins, who’s kind of an expert on QAnon, has reported, this has been a long-standing fantasy among QAnon true believers: that there are going to be these barges that collect the enemies of Trump and his administration and bring them down to Guantanamo Bay and try them for treason or sedition or whatever. And that that’s going to be the grand climax of this long-boiling battle between good and evil, and good will finally prevail when these people are locked up in Guantanamo. That is what Ginni Thomas apparently believed on Nov. 5, 2020.

On Jan. 6 itself, Ginni Thomas was cheering on people who were at the Ellipse and eventually the Capitol, right?

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She herself was at the Ellipse, we now know. So yes, she was very enmeshed in this movement and not just close with Mark Meadows, but close with the organizers of the event. Allegedly, according to Jane Mayer, she served as a kind of peacemaker and brought together different factions organizing this event. She was so respected in these various pockets of the right that she was able to bring together different leaders and say: This is what you need to do. You all need to get along. This is our goal.

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How many cases involving the 2020 election or Donald Trump or Jan. 6 have come before the Supreme Court?

Already at least half a dozen, and my count may be incomplete. What’s really notable is that Clarence Thomas has been on the pro-Trump side of most, if not all, of those cases. For instance, he was pushing really hard to take up this big case about whether the Pennsylvania Supreme Court lawfully extended the receipt deadline for mail ballots. In his dissent, he promoted some of these conspiracy theories about ballot fraud that we now know Ginni Thomas was texting to Mark Meadows and probably others. He wrote in an opinion, Mail balloting is just inherently susceptible to fraud. It relies exclusively on a system of trust. It’s an honor system. When courts expand mail balloting, they’re just expanding opportunities for fraud. That is just the slightly nicer way of saying what Ginni was saying about the Biden crime family engaging in mass ballot fraud. Even before Clarence Thomas’ notorious vote trying to block the Jan. 6 committee from getting these documents about Trump, it was very clear that there was overlap between Ginni’s political activism after the 2020 election and Clarence Thomas’ own votes trying to help Trump during the 2020 election.

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If you ask Clarence and Ginni Thomas, they’ll say: We keep things separated. We don’t discuss work.

Yes, that’s what they say.

Is there any chance in your mind that Clarence Thomas will recuse himself from more related cases?

I don’t think so, frankly. He is not going to start doing now what he obviously should have started doing years ago. I could even imagine a case where Ginni Thomas has been subpoenaed by the Jan. 6 subcommittee and fights that subpoena to the Supreme Court, and Clarence Thomas not only votes on the case but sides with her.

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Experts are saying the other justices on the court are probably really embarrassed by this. Why can’t they just go to Thomas and say, “We’re going to need you to recuse here”?

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Because there is nothing they can actually do to make him recuse. And I think they are genuinely afraid of poisoning their relationship with him by pressing this issue too hard or too far. Think about it from the perspective of someone like Elena Kagan: She has nabbed Thomas’ vote in some pretty important cases. So I think if you’re Kagan, you’re going to say to yourself: Going to him and asking him to recuse will accomplish nothing because I have no influence over this. This is all building on decades of unethical conduct and I’m coming in rather late, and all I’m going to do is further alienate him and make it even more difficult to get that fifth vote on a 6–3 conservative court. So why risk it?

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What about impeaching Clarence Thomas? Is there a case for that here?

Absolutely. But moderates do not want to burn up their political capital and their time impeaching a justice. All of these Democrats know that even if they get the impeachment through the House, the Senate is not going to remove him. Republicans will never vote to remove Clarence Thomas.

There are reports that the congressional subcommittee is planning to ask Ginni Thomas to testify about her involvement in the events of Jan. 6. How do you expect that to play out, since a lot of White House insiders have straight-up refused to testify?

This is a theory on my part—I don’t have reporting to back it up—but I think it seems pretty clear that Democratic members of the Jan. 6 subcommittee leaked these texts to put pressure on Liz Cheney and Adam Kinzinger to call Ginni to testify. If you read the New York Times report specifically about Liz Cheney’s extreme hesitance to even look into Ginni Thomas, if you look between the lines, it seems pretty clear that Democrats want to call her and Republicans don’t. This committee has been so unified for so long, with bringing the two Republicans on board, so why risk creating a huge rift between the two sides? Yet, now that the texts are out, it’s got to be really hard for the Republicans not to call her to testify, right? Because she is there on Jan. 6 texting the chief of staff, the guy who is one of the main targets of this committee, and actively engaging in these conspiracy theories and urging along this attempted coup. So if Ginni gets subpoenaed, if she gets called to testify, I strongly doubt she will agree to it. I think she will fight it knowing she has at least one vote on her side on the Supreme Court. But I’m not sure the committee will get that far because they are so eager, or even desperate, to prevent any rift between Cheney/Kinzinger and the Dems.

So you’re thinking they won’t call her to testify?

Correct.

Well, that doesn’t achieve very much.

Clarence Thomas has been on the Supreme Court for 30 years. He has had four clerks every year, and many of those clerks are now power brokers in D.C.—superpowerful, wealthy, well-connected people deeply entrenched in politics and conservative activism. One of the problems with giving justices life tenure is that they are able to build up this network of protectors who can spring into action if their justice is facing any kind of problem—including an investigation—and try to shield him or his spouse from accountability. That appears to be exactly what we’re seeing right now. There is no system in place to push back against that.

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