Supreme Court rules allow Clarence Thomas to decide for himself if wife’s activism presents a 'conflict of interest': report

Critics of U.S. Supreme Court Justice Clarence Thomas and his equally far-right wife, GOP activist Ginni Thomas, have recently been using the phrase “conflict of interest” in connection with Justice Thomas — arguing that it is wildly inappropriate for him to have a wife who has been promoting former President Donald Trump’s false claims about the 2020 election and expressed her solidarity with the “Stop the Steal” rally of January 6, 2021. Washington Post reporter Michael Kranish discusses these criticisms in an article published on January 31, stressing that under Supreme Court rules, it’s up to Justice Thomas to decide whether or not his wife’s activism is a conflict of interest.

“Ginni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the January 6 insurrection as ‘overtly partisan political persecution,’” Kranish reports. “One month later, her husband, Supreme Court Justice Clarence Thomas, took part in a case crucial to the same committee’s work: former President Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.”

Kranish continues, “Thomas was the only justice to say he would grant Trump’s request. That vote has reignited fury among Justice Thomas’ critics, who say it illustrates a gaping hole in the Court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the Court.”

The journalist notes that Gabe Roth, executive director of Fix the Court, believes that “absolutely…. Clarence Thomas should have recused from the January 6 case.” But according to Kranish, deciding whether or not to recuse himself from a case is up to Justice Thomas himself.

“While the Supreme Court is supposed to operate under regulations guiding all federal judges, including a requirement that a justice ‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,’ there’s no procedure to enforce that rule,” Kranish explains. “Each justice can decide whether to recuse, and there is no way to appeal a Supreme Court member’s failure to do so. Unlike in lower courts, there is no other judge that can step in — and thus, a recusal by one justice would mean considering the case with only eight justices, increasing the chance it could not be resolved.”

Ginni Thomas’ activism, according to Kranish, has, in some instances, “overlapped with cases that have been decided by Clarence Thomas.”

Kranish notes, “Thomas’ vote in the January 6 case is such a striking conflict of interest, critics say, that some hope it sparks further support for long-sputtering efforts to toughen rules governing the justices — an effort bolstered by a White House commission last month that noted the inherent problem with (the) Court’s recusals.”

Kranish’s article comes several days after the Post published an article by author James D. Robenalt, who took a look at a Supreme Court justice of the 1960s who came under fire because of his wife’s activities: Justice Abe Fortas, a Lyndon B. Johnson nominee. Ginni Thomas, Robenalt stressed, was not the first controversial wife of a High Court justice.

Caroline Fredrickson, a law professor at Georgetown University in Washington, D.C., argues that Justice Thomas has no business making decisions on issues that his wife is associated with.

Frederickson told the Post, “In every case that has come up, he has shown no interest in recusal and has, in fact, seemingly been defiant. To be a Supreme Court justice and to be married to a firebrand activist who’s trying to blow things up (is unique)…. It’s so out of bounds that if it weren’t so frightening, it would be comical.”