Which is worse? A Supreme Court justice’s wife working actively to overturn the results of the 2020 presidential election or her husband’s refusal to recuse himself from cases related to her cause?
Answer: They’re both bad.
Both reek of what Associate Justice Sonia Sotomayor aptly called the “stench” of partisanship in public perceptions that the Constitution and its reading are “just political acts.”
Neither is even remotely acceptable for an institution our nation and the rest of world look to as a beacon of accountability and the rule of law, especially at a time when those core principles of democracy are under attack around the world.
Yet, fresh revelations in the investigation of the Jan. 6, 2021, mob assault on the Capitol put the long-brewing debate over judicial conflicts of interest under a new and troubling spotlight.
Recent reports by CBS and The Washington Post revealed the existence of almost 30 text messages exchanged between Virginia Thomas, a conservative lawyer and activist, and Mark Meadows, then-President Donald Trump’s final chief of staff, in late 2020 and early 2021.
The texts show Ginni Thomas pushing conspiracy theories and urging Meadows to invalidate the results of the 2020 presidential election, which she called an “obvious fraud,” making it necessary to “release the Kraken and save us from the left taking America down.”
Earlier in March, Virginia Thomas revealed in an interview with the conservative Washington Free Beacon that she had attended the so-called Stop the Steal rally on Jan. 6 at the Ellipse in Washington but left before the rally turned into an assault on the Capitol — because, she said, she was cold.
Although it is Thomas’ right to attend rallies and hold political views like any other American, engagement in blatant political activism while married to a Supreme Court justice sharply breaks with the high court’s historical standards and traditions for their spouses.
The reason becomes more painfully obvious in light of two cases in which Justice Thomas already has participated and a third that may soon reach the high court.
First, when the court ruled in January against Trump’s attempt to stop the House Jan. 6 investigative committee from obtaining records of his communications related to his “Stop the Steal” drive, Thomas was the sole dissenter.
Did he know that something in those records might implicate his wife? Were there even more texts in the 2,300 that Meadows turned over that contained more of his wife’s encouraging words?
Supreme Court justices are not bound by the judicial code of conduct that applies to all other federal judges that they recuse themselves from cases that might cast doubt on their impartiality.
Yet judges are prohibited under a federal statute from hearing cases in which their spouses have “an interest that could be substantially affected by the outcome of the proceeding” or in which their “impartiality might reasonably be questioned.”
Both Thomases have repeatedly denied any conflict of interest between her activism and his work on the high court. But her deep involvement in Stop the Steal efforts, not to mention her baseless QAnon-like conspiracy theories, sounds like a textbook example of an “interest” in which her husband’s “impartiality might reasonably be questioned” in judging any disputes involving the 2020 presidential election and the Jan. 6 riot investigations.
It also raises fresh questions about the independence of the federal judiciary and the need for a code of ethics to govern the one group of federal judges that doesn’t have one, even though they make up the highest court in the land.
Back on Capitol Hill, Illinois Democrat Dick Durbin, chair of the Senate Judiciary Committee, said last week he thought Thomas should “certainly” recuse himself from future Jan. 6 cases. But first, he also noted, confirming Judge Ketanji Brown Jackson to the high court was his committee’s highest priority.
House Speaker Nancy Pelosi, a California Democrat, cited the Virginia Thomas texts last week in renewing her call for such a code. In fact, the For the People Act, passed by the House in 2019, included a new code of ethics for the entire federal judiciary, including the Supreme Court, but failed in the Senate.
Justice Elena Kagan testified during a congressional budget hearing in 2019 that Chief Justice John Roberts was exploring whether to develop an ethical code for the court, which would be a turnaround from his earlier rejections of the need for such a code. And a healthy one.
Perhaps the chief justice, known to be deeply concerned about the court’s credibility in an era of rising politicization and polarization, was persuaded by the way almost all members of the nation’s high court have been criticized for engaging in behaviors that are forbidden to other federal court judges. These have included participation in partisan fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media and, yes, failing to recuse themselves from cases involving apparent conflicts of interest, whether financial or personal.
Concerns for the court’s credibility are warranted. Public approval of the Supreme Court fell last year in Gallup’s long-range survey to 40%, its lowest recorded level since the polling giant began asking the question in 2000.
The decline follows controversial changes in the court’s membership and a series of major rulings on such red-hot issues as religious freedom, abortion, voting rights, vaccine mandates, pandemic eviction limits and rising use of the “shadow docket,” emergency orders and summary decisions handed down without oral arguments.
While the justices with their lifetime appointments are not directly accountable to voters in the way that elected officials are, if they appear to be breaking the rules with impunity, our democracy unravels.
Legal scholars often cite Alexander Hamilton’s description in The Federalist Papers of the judiciary as “the least dangerous branch,” since it has “no influence over either the sword or the purse.”
Yet, the judiciary must have qualities even more powerful in a democracy: credibility and accountability.
You can’t have one without the other, even — or especially — on the nation’s highest court.
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