The most overwhelming aspect of the news last week that Virginia “Ginni” Thomas repeatedly texted Donald Trump’s White House chief of staff about efforts to overturn the 2020 election results in the days after the vote was the shock of what it meant about what her husband, Justice Clarence Thomas, had done. He is, after all, the person bound by ethical rules. While we didn’t realize it until last week, the news means that Thomas has voted in cases in which his wife’s text messages would give him reason to attempt to protect her. This goes beyond the potential appearance of a conflict of interest for a sitting federal judge. As the New Yorker’s Jane Mayer explained last week, even though the justices are not bound by enforceable judicial ethics rules, they are subject to a federal law, 28 U.S.C. Section 455, that bars them from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding.” That Thomas might have played a role in shielding potentially incriminating information about his wife from public scrutiny transcends even any unenforceable, squishy recusal standard that currently exists.
Defenders of the Thomases’ conduct have offered up a raft of snot-right-out-the-nostrils defenses. The brashest of these has been the “sexism” defense, which holds that women and their spouses are separate and distinct persons who can only be said to be invested in the work of the other through diminution of the woman’s agency and power.
Sen. Josh Hawley, who spent last week bullying a Black woman on national television, floated the idea on CNN that it is sexist to view Ginni Thomas as capable of compromising her husband. “She’s an independent, adult woman,” Hawley said. “It just seems a little strange to me, all of these calls for her husband to be, what, like, minding her better? Frankly, I think it’s kind of misogynistic. This idea that he is somehow automatically responsible for everything she says—what does that mean? Does she have to get his permission?”
The “sexism” claim is of course a long-standing Thomas-Thomas ethics avoidance trope. In recent months, both the New Yorker and the New York Times published detailed pieces on Ginni Thomas’ activism on issues that might come before her husband at the court, and revealed that she had special access to the Trump White House which she used to try to pressure the administration on political appointments. Politico further reported that she was in contact with Gov. Ron DeSantis, who is regularly before the court. Over the years, as more and more Thomas couple stories emerged, conservative groups have liked to huff that anyone with the temerity to question Ginni’s outsize role in matters that are pending before the court is perpetuating a “cyclical sexist smear.”
There’s an obvious fallacy to the “but feminism!” defense. Just look at some corollaries. Justice Stephen Breyer, for instance, has long been recusing himself in cases in which his brother, also a federal judge, has participated, and nobody has ever suggested that this infantilizes or diminishes Judge Charles Breyer. When Thomas recused in the famous Virginia Military Institute case in 1996 because his son attended the institution, did that diminish or degrade his son? Indeed, the best way to think about the argument that it’s “sexist” to assume a justice and his or her spouse or partner might be aware of and even potentially influenced by the work that the other one does is to imagine a simple counterfactual: What if Justice Amy Coney Barrett’s husband had engaged in decades of political work with and on behalf of groups that bring cases before the Supreme Court, filed amicus briefs in litigation before the court, or had egged on the Jan. 6, 2021, insurgents in social media postings? Simply put, nobody would say that critiques of such conduct would be “sexist.” They would note that it is wildly and emphatically inappropriate for a justice’s spouse to have business before the court, or to suggest he has special access to the court. (Whataboutism that references Ruth Bader Ginsburg’s recusal practices rarely invoke the charge of “sexism” over her husband. It’s assumed he had a career on par with hers.)
What’s “sexist”—to the extent that word can be deployed at all in this instance—is the shrugging acceptance that Virginia Lamp Thomas isn’t a serious political operative because she’s just a kind of Lady Who Lunches … if those lunches happen with insurgents and insurrectionists. The notion that Ginni Thomas’ ideas aren’t sufficiently important or serious to rise to the level of being taken seriously by serious male jurists is the most shocking aspect of this defense. Were a male spouse—a Marty Ginsburg—to engage in the kinds of political advocacy and fundraising we have seen over decades from Ginni, nobody would decry criticism as sexist. They’d be sharpening the knives.
To be sure, there’s no evidence that Clarence Thomas was aware of his wife’s contacts with Trump’s White House or indication that his votes were influenced by them. But the legal standards do not turn on what the Thomases’ actually knew or believed. Framing this as a debate about gender equality is as fatuous as framing it as a debate about whether Thomas believes himself to be objective. According to precedent, set forth in Liljeberg v. Health Services, the test is a straightforward one. It does not require evidence of actual bias, only a showing that a reasonable person, with knowledge of the relevant facts, would believe that the judge or justice has created an “appearance of partiality.”
In his comprehensive 2013 law review article on recusal, professor James Sample offers insights into the current moment with his look at Supreme Court recusal controversies past. Sample notes that when, in 2004, Justice Antonin Scalia declined to recuse himself from a case involving then Vice President Dick Cheney, after the two had gone on a hunting trip together, at least Scalia wrote at length to explain his reasoning. And as Sample notes, the justice’s defensive rhetoric shifted “the frame of focus away from whether his impartiality might reasonably be questioned by the American people to his perception of the unreasonableness of the American people.” File the shabby “sexist” critique in that drawer.
Critically, Sample notes that the sexism of even the old rule about judicial spouses was “an anachronism in its own time.” From the article:
With respect to spouses, consider that the 1972 version of the ABA Code of Judicial Conduct provided that a candidate for judicial office “should encourage members of his family to adhere to the same standards of political conduct that apply to him.” Reflecting on that provision years later, federal Judge Roger Miner wrote, “[m]y wife, a well-known political activist at that time, responded: ‘Consider me encouraged,’ and went on to lead some statewide and national campaigns.”
Sample also quotes extensively from a decision by former Judge Stephen Reinhardt of the 9th Circuit who heard the appeal of the decision overturning a same-sex marriage case in 2012. Addressing the issue of his wife’s involvement in the case on behalf of the California ACLU, and his refusal to recuse, Reinhardt wrote:
[M]y wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned.
Of course, nobody is suggesting that Ginni Thomas should be unemployed, or that she has to obtain permission from her spouse to engage in political activities, or that as a result of some protracted patriarchal Vulcan mind meld with all men, she is incapable of forming her own opinions. That’s a convenient cover to evade the reality that she is an interested party in litigation that is coming before her husband, and that both he and she now appear to have an improper interest in the outcomes of those cases. The cries of “sexism” elide the reality that in a world in which women work, they can undermine their husbands’ appearance of objectivity as handily as a son, brother, or law partner once could.
You’ve come a long way, baby.
For all the outraged howling, the Thomases’ case is not a close call under either the federal statute or the judicial canons. In a letter to the chief justice demanding that the judiciary create a binding code of conduct for the Supreme Court, a group of lawmakers—led by Sens. Elizabeth Warren, Richard Blumenthal, and Cory Booker and Rep. Pramila Jayapal—laid out some of the damning evidence:
Ms. Thomas was not simply another attendee at the January 6th “Stop the Steal” rally outside the White House; she was one of nine board members for a conservative political group that helped lead the “Stop the Steal” movement, she signed a letter calling on House Minority Leader Kevin McCarthy to punish Republicans who participated in the U.S. House Select Committee investigating the January 6th attack, and as last week’s reporting indicates, she was in direct communication with the White House and congressional aides about strategies to overturn the 2020 presidential election as the Trump Administration was coordinating litigation before the Supreme Court on the topic.
Sen. Chris Murphy has also reintroduced legislation to correct for this high court where ethics rules go to die, while the bipartisan commission on court reform and court reform groups like Fix the Court have numerous good ideas that warrant serious consideration. Sadly, when this topic has come up before the court in the past, John Roberts has chosen to look the other way. In his 2011 annual report, the chief justice emphasized that “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.” That is a problem that has nothing whatever to do with unfair sexism. It has everything to do with judicial impunity.