Courts

Clarence Thomas Is Taking Full Advantage Of The Supreme Court's Lack Of Rules

Sure, senators *want* Justice Thomas to recuse himself, but he doesn't have to.

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Guest arrivals: Supreme Court Justice Clarence Thomas and wi

(Photo by Gerald Martineau/Washington Post/Getty Images)

By now, I’m sure you’ve heard about the unhinged series of text messages — 29! — between Ginni Thomas, wife of Supreme Court Justice and a political operative in her own right, and Mark Meadows, Trump chief of staff, over the dawning realization that Donald Trump had lost the presidential election to Joe Biden.

And they went a little something like this:

On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!…You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

And these exchanges:

When Meadows wrote to Thomas on Nov. 24, the White House chief of staff invoked God to describe the effort to overturn the election. “This is a fight of good versus evil,” Meadows wrote. “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.”

Thomas replied: “Thank you!! Needed that! This plus a conversation with my best friend just now… I will try to keep holding on. America is worth it!”

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In the Nov. 5 message to Meadows, Thomas went on to quote a passage that had circulated on right-wing websites: “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) 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.”

It’s a journey! But then Clarence Thomas went on to hear a case about the January 6th committee — and shockingly! — he was the lone dissent when the Court rejected Trump’s efforts to block the release of presidential records to the committee. Hmmm… sus.

Senator Amy Klobuchar (D-Minn.) is on the record saying Thomas best not be on any 2020 elections cases in the future, saying this is “a textbook case for removing him, recusing him from these decisions.”

She continued:

“The entire integrity of the court is on the line here,” she said on ABC’s “This Week,” while noting: “all I hear is silence from the Supreme Court right now.”

Klobuchar added: “They had better speak out on this because you cannot have a justice hearing cases related to this election and, in fact, the ethics rules that apply to all the other federal judges say that if it involves a family member, appearance of impartiality, they have to recuse themselves.”

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But we all know the Supreme Court only has one rule when it comes to recusals.

The rules are, there ain't no rules.

So it’s nice that Senator Ron Wyden also agrees: “At the bare minimum, Justice Thomas needs to recuse himself from any case related to the January 6th investigation, and should Donald Trump run again, any case related to the 2024 election.” And that experts in the area of judicial recusal are calling this case unprecedented:

“This is not your run-of-the-mill close call. … This is as far beyond the line as any Supreme Court recusal question I have seen, and I’ve studied Supreme Court recusal all the way back to Marbury v. Madison,” said James Sample, a law professor at Hofstra University. “There is an order of magnitude of severity here that is arguably unprecedented.”

….

“[Clarence Thomas] knew without a doubt that she was involved in the efforts to overturn the election. … To then say, as a justice who has the constitutional obligation to ensure both fairness and the perception of fairness, that neither he nor his wife would communicate with each other once there was a case challenging disclosure of White House records strikes me, at best, as putting his head in the sand and hoping for the best,” Sample said.

But, right now, it’s solely Justice Thomas’s call as to whether he should recuse himself.

As Fix the Court’s Gabe Roth notes, it’s time for some clear recusal rules for the Supreme Court:

“Ginni’s direct participation in this odious anti-democracy work, coupled with the new reporting that seems to indicate she may have spoken to Justice Thomas about it, leads to the conclusion that the justice’s continued participation in cases related to these efforts would only further tarnish the court’s already fading public reputation.

“In the very least, I hope this developing story underscores the need for Congress to make clearer and more exacting the disqualification rules for federal judges and justices.”

Because it’s been a problem for a while, and the Ginni Thomas debacle shows us how much worse it can get.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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