Justice Thomas Ruled on Election Cases. He should have been stopped by his wife's texts.
A legal expert said that the nature of the text messages was enough to make the person who sent them have to step down from their job. But the Supreme Court has always left these kinds of decisions up to the judge in question.
Revelations that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, had texted the Trump White House a lot urging them to overturn the 2020 election brought into sharp focus the conflict of interest she has caused, as well as the lack of a clear-cut way to fix it.
Those who study legal ethics said on Friday that it is one thing for the wife of a Supreme Court justice to say what she thinks about politics. But it is another for her to say things that are full of wild conspiracy theories. That may not be enough to make the judge stay away from cases that deal with those views on their own.
However, the text messages from Ginni Thomas, a longtime conservative activist who goes by Ginni, showed something very different and very scary, experts said.
People who worked for President Trump sent messages to Mark Meadows, Trump's chief of staff, during and just after some very stressful times. These messages show that she was an important part of the legal process to overturn the election.
Amanda Frost, a law professor at American University in Washington, said, "I'm not sure how I would have come out if we just got a lot of texts from her saying that this is terrible."
Prof. Frost said: "But she wasn't just doing that." "She was thinking about how to get things done." She was trying to sell. She was yelling at her.
The texts were among about 9,000 pages of documents that Mr. Meadows gave to the congressional committee that was looking into the attack on the Capitol building. Democrats jumped on the news right away and used it to draw attention to the conflicts they said Ms. Thomas's political activities could cause and to ask Justice Thomas to step aside from cases involving the election and how it went afterward. Ron Wyden, a Democrat from Oregon, said that Justice Thomas's "behavior on the Supreme Court is becoming more and more corrupt." He said that he had been "the lone dissent in a case that could have denied the Jan. 6 committee records relating to the same plot his wife supported."
Justice Thomas, said Mr. Wyden, "needs to step aside from any case relating to the Jan. 6 investigation, and if Donald Trump runs for president again, any case relating to the 2024 election."
He was released from the hospital on Friday after being there for a week because of flu-like symptoms. Thomas has been part of the conservative establishment for a long time. Pressure on him to step down from his job was not a priority for Republicans, even those who had distanced themselves from Mr. Trump and the more extreme parts of their own party.
Ms. Thomas sent a lot of angry text messages to Mr. Meadows, urging him to make bogus legal claims. The "Greatest Heist in Our History" is what one person said about Biden and the Left.
Stephen Gillers, a law professor at New York University, says that Justice Thomas should have stepped aside from cases involving Ms. Thomas because of them.
"He had to stay away from any case that had anything to do with the election, the Jan. 6 committee, or the Capitol invasion," he told the story.
Professor Frost agreed that the situation was “an easy case.”
When your spouse talks to people who can fight an election, "she said, "you shouldn't be on the Supreme Court deciding that election or any part of it."
But in January, Justice Thomas was part of a decision that blocked the release of White House records about the attack on the Capitol. Court: The former president was slapped down by the judge.
Only Justice Thomas said he disagreed, but he didn't say why.
A friend-of-the-court brief from Rep. Jim Meadows said that the outcome of this case will have an impact on his own efforts to keep more records from the House committee that is investigating the attacks from being seen by the committee.
The Supreme Court turned down the case last month, but did not say why. There was no sign that Justice Thomas had stepped down.
If Texas wants the court to throw out election results in four battleground states, Justice Thomas will be part of a ruling in December 2020, around the time of text messages. Request: The court turned down the request, with Justices Thomas and Samuel A. Alito Jr. making a short statement that said the majority had acted too quickly in shutting down the case.
In February 2021, Justice Thomas wrote a dissent to the Supreme Court's decision not to rule on a challenge to Pennsylvania's voting procedures. He talked about election fraud in the dissent.
We are lucky that most of the cases we have seen have been about improper rule changes, not fraud, said the author. "But that's not very comforting," he says. In order to have confidence in an election, there needs to be no strong evidence of systemic fraud in the election itself.
Justice Thomas didn't answer a question about the case on Friday.
Everyone who is a judge in the federal government, even Supreme Court justices, has to follow a federal rule about recusal.
There is a law that says that "any justice, judge, or magistrate judge of the United States must step aside from any proceeding in which his impartiality could reasonably be questioned," or "he must step aside from."
Legal experts say that, based on the nature of the text messages and the controversy over them, Justice Thomas should step down from the bench.
His situation might also be covered by a more specific law about relatives, including spouses. It's against the law for a judge to be involved in a case in which their spouse has "a stake that could be significantly affected by the outcome."
He said that the word "interest" was the key.
"By writing to Meadows, who was the chief of staff and a member of the "Stop the Steal" movement," Professor Gillers said. "She joined the team, so she has an interest in how the court rules that could affect Trump's goal of changing the results."
Last month, the New York Times Magazine ran an investigation that revealed more about the role that Ms. Thomas played in efforts to overturn the election from her position on the nine-member board of CNP Action, a conservative group that helped advance "Stop the Steal" and in mediating between factions of "Stop the Steal" organizers "so that there wouldn't be any division around Jan. 6."
Mrs. Thomas told a conservative magazine this month that she and her husband kept their business and personal lives separate. This is what she said: "Clarence doesn't talk about his work with me, and I don't let him help me with my work."
But the law said that Justice Thomas had to ask about his wife's activities, Professor Gillers said.
Asked her what she was doing: "He had to find out what she was up to." "He can't close his ears and pretend that he doesn't know what's going on," says the teacher. When you deliberately avoid learning something, you know it.
It is one thing for a law to be on the books, but another to make sure that it is being done.
There may be questions about the law's constitutionality, at least when it comes to Supreme Court justices. During his 2011 annual report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. said that Congress has never tried to test the limits of its power to make people resign.
But he said that the justices did what the law said they should do, in their own way. Because the Supreme Court has said that no one should be a judge in his or her own case, it has left the decision about whether to recuse a judge up to that person.
He said the justices could be trusted to do the right thing.
"I have complete faith in the ability of my colleagues to decide when to recuse themselves," Chief Justice Roberts said in a letter. "They are jurists who have a lot of integrity and have been through a very thorough process to be appointed and confirmed."
It's possible to overturn a lower-court judge's decisions that don't go through. At the Supreme Court, that is not true.
As far as recusal processes go, "there is only one big difference," he said. There is no higher court that can overrule a judge's decision not to recuse in a certain case. "This is because the Constitution says that there should only be one Supreme Court."
That also means, he said, that recusal from the Supreme Court is very bad.
If a judge on an appeals court or in a district court leaves a case, there is another federal judge who can take his or her place, he said in his letter. But the Supreme Court has nine members who always sit together, and if one of them leaves a case, the court has to go on without all of its members.
"A justice can't just leave a case because it's convenient or to avoid a fight," he said. Instead, each justice has a duty to the court to make sure that he or she isn't going to have to leave a case before he or she does.
Chief Justice Roberts said that letting other justices question their colleagues' decisions to stay out of a case could be very bad.
During a case, "the Supreme Court does not make a decision about whether one of its own members should stay or leave," he said. "In fact, if the Supreme Court looked at those decisions, it would be bad for the court to be able to change the outcome of a case by choosing which members of the court could be involved."
The judge who was nominated to be on the Supreme Court this week said that she would take her "recusal obligations" very seriously. Confirmation: She said she planned to step away from a fight against Harvard's race-conscious admission policy because, because she serves on one of the university's governing boards, she can't fight against the school's admission policy.