Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former deputy assistant attorney general at the Justice Department and a principal at The Raben Group, a national public affairs and strategic communications firm. Follow him on Twitter @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.
It’s a free country, and people are entitled to hold whatever wacky views they want. However, when those people are, say, married to a sitting Supreme Court justice, they shouldn’t be surprised if expressing those views comes with a serious cost. Justice Clarence Thomas’s wife, Ginni, put that notion to the test this week.
According to The Washington Post, early in the morning on Jan. 6, Thomas urged her Facebook followers to watch the news of that day’s pro-Trump rally at the Capitol on conservative media sites. “LOVE MAGA people!!!!” she wrote. Later, she sent more encouragement: “GOD BLESS EACH OF YOU STANDING UP or PRAYING.” Then, as thousands of pro-Trump rioters overran the Capitol, and things took a deadly turn she likely didn’t anticipate, Thomas is reported to have added, “[Note: written before violence in US Capitol].”
[My note in response: If you have to update your social media posts to distance yourself from seditionist chaos at events you knowingly promoted, it’s time to stop promoting such events. Or rethink your views.]
Thomas’s behavior exposes two things: how fringe views have now eclipsed mainstream conservative thought in America; and how weak the standards are for policing the conduct of Supreme Court justices and their spouses.
Thomas’s recent posts – and other political conduct – rankled some of her husband’s former staff members who belong to a private “Thomas Clerk World” email list, according to the Post report. Ms. Thomas sent a lengthy apology to the list, writing that “My passions and beliefs are likely shared with the bulk of you, but certainly not all…Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.” She continued that “I would ask those of you on the contrary side to have grace and mercy on those on my side of the polarized world.”
Gentleness, grace and mercy are noble sentiments. But Thomas is being disingenuous. She has a long history of incendiary rhetoric, particularly online. Was she really “speaking knowingly and gently across the divide” last summer, when she referred to the Black Lives Matter protesters as “radical extremists” who “hate America”?
Was she attempting to heal the “polarized” world when regularly sharing baseless memes accusing Democrats of engaging in “a silent coup…against the very premises of our constitutional republic,” advancing the anti-Semitic trope of a Democratic Party run by the Soros family? When she speaks of her “side” is she speaking about the one that showed up at the Capitol building armed with nooses, gallows and riot gear, calling out threats for members of Congress they said they wanted to punish, and trashing the seat of our democracy? Or is she talking about some other side?
Notably absent from Ginni Thomas’s finger-wagging about healing and pleas for mercy is a renunciation of the view that got us here in the first place: The lie that somehow the 2020 election was stolen and that it is an act of patriotism to continue to challenge it. It is a little rich, in the week that a Capitol Police officer who gave his life on Jan. 6 lay in honor at the Capitol Building, for a leading combatant in the cooked-up culture wars to have a sudden epiphany about the need for civility in government.
Even worse, however, is the fact that no matter how far his wife takes her antics, Justice Thomas will likely not face any real repercussions for it. Under federal law, justices must recuse themselves from cases in which their “impartiality might reasonably be questioned,” or where their spouse has “an interest that could be substantially affected by the outcome.” However, such recusals almost never happen on the Supreme Court. The reality is that while Congress can impeach justices for egregious conduct – a step not taken since 1805 – there is no real mechanism for enforcing ethical rules against them.
Some of the most glaring examples of the current legal order’s failure to hold justices accountable for conflicts of interest involve the Thomases themselves. In 2011, the justice refused to recuse himself from consideration of cases around the Affordable Care Act, despite his wife’s extensive work as a lobbyist arguing for a full repeal of the law. He ultimately voted for its full repeal.
Worse, it is hard to know exactly how lucrative the work was at the time for the Thomases, in part because the lobbying organization she established, Liberty Central, was able to take unlimited secret donations. Such donations, incidentally, were made possible by the court’s ruling in Citizens United v. Federal Elections Commission, which Justice Thomas joined, arguing that the court should have been even more permissive in tolerating such donations than his fellow conservative colleagues ruled. (At the time, counsel for Liberty Central told the New York Times that it had “internal reviews and protections to ensure that no donor causes a conflict of interest for either Ginni or her husband.” The Supreme Court public information office said she had consulted the court’s legal office on her involvement with Liberty Central when it launched, but it declined to provide the Times more information.)
If the Thomases’ having possible financial conflicts of interest in matters before the justice wasn’t sufficient to warrant his recusal from cases, certainly his wife’s repeated pushing of conspiracy theories and publicly inserting herself into partisan matters won’t either.
Justice Thomas is far from the only justice in recent memory to have gotten away with conduct that stepped close to, if not over, commonsense ethical lines. For instance, in 2017, Justice Neil Gorsuch raised eyebrows by giving a keynote address at the Trump International Hotel in Washington – a venue whose revenue went, in part, to the sitting President of the United States.
And in 2004, the late Justice Antonin Scalia was confronted with questions about whether to recuse from a matter involving former Vice President Dick Cheney, with whom he had recently gone duck hunting. Scalia responded that there was nothing suspect about his socializing with executive branch officials, famously closing with the quip, “That’s all I’m going to say for now. Quack, quack.”
Part of the problem is that the Supreme Court can be hard to regulate. It starts and ends with a philosophical question: What is the court with the authority to judge the members of the highest court in the land? None exists in the Constitution, largely leaving the members to police themselves. Members of Congress have called for tougher ethical standards for justices, and advocates have pushed for an ethical code of conduct to apply to their behavior. These can’t come quickly enough.
Until then, we’ll just have to tolerate whatever ridiculous and unethical behavior justices and their spouses engage in – and will have to listen to them lecture us about mercy and tolerance when they realize they’ve gone too far.