Efforts to change the outcome of Supreme Court cases by trying to force Justice Clarence Thomas to recuse himself continue apace, all based on new standards that have never been applied to any other judge or justice. At last week’s House Judiciary Subcommittee hearing, Professor Stephen Gillers, a well-known judicial ethics expert, invented a new standard to block Justice Thomas from all cases regarding the 2020 elections and the events of Jan. 6, 2021, because of his wife Ginni Thomas’s activities. But he is wrong on the law and on the facts.
At the outset of the hearing, where I was also a witness, Gillers did agree that none of Ginni Thomas’s political activities before her texts with Mark Meadows required Justice Thomas to recuse himself from any case. This destroyed the prior Democrat and media narrative regarding past cases and revealed their complaints as the frivolous partisan attacks that they are.
Thus, the critics are wrong that Justice Thomas was required to recuse himself from legal challenges to Obamacare because Ginni said it was a “disaster” and urged the law’s repeal. Nor was a recusal required when she worked with groups on messaging, and those groups separately and without Ginni’s involvement, filed amicus briefs before the Supreme Court.
Consistent with the law’s recusal provisions and the Supreme Court’s 1993 Statement of Recusal Policy, Justice Thomas has not had to recuse because Ginni has never been a party nor a litigant before the court, and she does not have an “interest” that would be “substantially affected” by the outcome of the case.
Gillers’s Defense of Judge’s Wife Applies to Ginni Thomas
Gillers made the same point when he filed a brief defending Ninth Circuit Judge Stephen Reinhardt’s decision to not recuse from a case involving a challenge to a ban on same-sex marriages in California, even though his wife, Ramona Ripston, who was the head of an ACLU chapter, had spoken out forcefully against the ban and her group had joined two amicus briefs opposing the ban in the court below.
He noted she was neither a party nor a litigant and had no interest beyond a general interest in “endorsing an outcome favoring equality.” But in now arguing for Justice Thomas to recuse himself from 2020 election cases, Gillers claims that Ginni Thomas’s conduct is different than what was at issue in the Reinhardt case.
A leak of text messages produced by former Trump White House Chief of Staff Meadows to the Jan. 6 Committee showed Ginni Thomas had texted Meadows, expressing concerns about fraud in the 2020 elections (concerns shared by millions of Americans), and urged Meadows and his team to stand firm and be leaders in exposing the fraud.
Gillers claims that such texted encouragement changes the game, arguing that although “judges aren’t disqualified because of a spouse’s public views,” here “Ms. Thomas sought greater influence in the legal battle by advising Mr. Meadows … [and she] joined that effort from the inside, giving her the kind of interest in the litigation that requires Justice Thomas’s recusal.”
This is nonsense. Such general “attaboys” do not make one part of the “inside” team, a legal adviser, or a person with interests different from the many others who encouraged, both publicly and privately, the president and others to continue their election challenges.
First, such private encouragement seems less troubling than public encouragement that Gillers admits would not require recusal. And enforcing a standard triggered by private communications seems especially fraught.
Would we require all spouses of judges to release private emails and texts? Perhaps tape dinner party conversations or phone calls? Perhaps just ban all friendships and communication between judicial spouses and other political figures? Opinions expressed privately or publicly do not create an “interest” that would require a judge to recuse himself.
Reinhardt’s Wife Was Far More Involved than Ginni Was
Second, in trying to distinguish the Reinhardt case, Gillers claims that Reinhardt’s wife’s organization had filed in the lower court and not in his court, but that “the Trump team – Mrs. Thomas’s team – anticipated and then filed appeals to the Supreme Court and Justice Thomas did not recuse.” This is astonishingly illogical.
Ripston was the head of the ACLU chapter that filed an amicus brief in the district court. She was a paid employee of that “team.” As anyone who litigates understands, amicus groups routinely coordinate and brainstorm with the primary parties, in part so they do not repeat what the party already plans on saying.
Given the magnitude of the constitutional issues at stake in a ban on same-sex marriages, Ripston knew that joining a brief in the lower court would make her views known to her husband in a legal filing in a case that would certainly go up on appeal to the Ninth Circuit. It is hard to imagine that neither she nor her subordinates failed to confer and coordinate with the primary parties in the case. And this was in addition to the views she publicly expressed on the issue.
But in Gillers’s blindered view, she was apparently not part of the “team” and thus had no “interest” in this case that would require Reinhardt’s recusal. It would seem that Gillers’ malleable concept of being on the “team” only applies if you happen to dislike or disagree with the “team.”
Judges’ Families Are Allowed to Have Political Views
Gillers has also now expanded his definition of “interest” to family members who, even though neither they nor their groups appear before the court, may approve of the outcome. Gillers would presumably require a Supreme Court justice’s recusal from the Mississippi abortion case if one of that justice’s children wrote a letter to the president or the attorney general defending abortion rights.
Ginni Thomas’s text messages expressing concerns about fraud in the election and urging Meadows to be a leader do not make her part of the legal battle or a member of the Trump “team.” She was not paid by the Trump administration and had no role whatsoever in developing strategy or legal arguments.
Judge Reinhardt previously concluded that his wife had no “interest” in the outcome of his case “beyond the interest of any American with a strong view concerning the social issues that confront this nation.” That is the same interest that Ginni Thomas had, and therefore Justice Thomas had no reason to recuse himself.
Executive Privilege Doesn’t Apply to Ginni Thomas
Finally, Gillers claims the Thomases both have an interest in shielding her texts from litigation, which requires Justice Thomas to recuse himself from any cases challenging the results of the 2020 elections or Jan. 6.
But Gillers is wrong because President Trump’s recent challenge asserting executive privilege regarding internal White House documents had nothing to do with Ginni Thomas. By its terms, executive privilege claims only apply to communications between the president and his closest aides, so these documents could not have included Ginni Thomas’s emails or texts.
Additionally, any case that gets to the Supreme Court will already have a factual record developed. It is at that time that Justice Thomas, consistent with every other justice, will review the parties, the litigants, and the issues before the court, and then decide if there is any basis for recusal.
Throughout this whole discussion since the most recent media attacks on the Thomases beginning in January 2022, there has been no case pending before the court challenging the 2020 election results or the Jan. 6 Committee for which Justice Thomas has to make that analysis.
Perhaps Gillers’ relativistic standards are driven by his unhinged antipathy towards Ginni Thomas and her political views. While that may curry favor from partisans like Jane Mayer, who quotes his antagonism in her New Yorker attack piece on the Thomases (calling Ginni’s conduct “reprehensible”), it is no basis for a manufactured recusal rule that seems ripe for political abuse, both now and in the future.