WASHINGTON — Supreme Court Justice Clarence Thomas and his wife of 35 years, Virginia “Ginni” Thomas, refer to each other as “best friends,” their bond built on deep conservative beliefs and forged tighter by decades of fighting attacks they perceive as unfair that began with his turbulent 1991 confirmation.
“She was a gift from God that I had prayed for,” the justice said in a new book about him, “Created Equal: Clarence Thomas in his Own Words.” “She’s been as dear and close a human being as I could have ever imagined having in my life.”
A longtime conservative activist, Ginni Thomas has seen her profile rise in Washington with her husband’s increasing clout on the Supreme Court in its steady shift further to the right. For years, Thomas was known as the silent justice, at one point going a decade without asking a question during oral arguments and joining fewer opinions than his fellow conservatives.
But he’s an outlier no more. Clarence Thomas’s newfound influence among the court’s conservative supermajority was evident this past week in the major decisions expanding gun rights and overturning the constitutional right to abortion in Roe v. Wade. He wrote the gun decision, which for the first time granted a broad right to bear arms in public. Then a day later, he urged his fellow justices who gutted Roe to go even further and take aim at precedents protecting contraception, same-sex intimacy, and gay marriage next — a radical agenda that no longer seems so far fetched.
Now, even as Thomas has found his voice in this emboldened right-wing court, revelations about his wife’s involvement in attempts to overturn the 2020 election could mar his moment and fuel the public’s increasing distrust of the institution.
Ginni Thomas’s advocacy on controversial matters that have reached the Supreme Court is unprecedented for the spouse of a sitting justice. Their close relationship — and Clarence Thomas’s refusal to recuse from cases touching on the election and its aftermath — has the court in uncharted ethical territory at a perilous time for its credibility.
Ginni Thomas has agreed to appear before the special House committee investigating the Jan. 6 insurrection to face questions about her communications with the team trying to help former president Donald Trump overturn the election results. Some legal ethics experts said Clarence Thomas might have broken a federal law covering judicial conduct when he did not recuse himself from a case related to the attack on the Capitol. He was the only dissenter when the high court rejected Trump’s assertion that executive privilege shielded White House communications about the incident.
Those ethicists warn Clarence Thomas definitely would be in violation of the federal law if he participated in any new cases involving the election or its aftermath, now that there’s no doubt he knows about his wife’s involvement. Ginni Thomas reportedly sent texts to Trump’s White House chief of staff Mark Meadows and e-mails to 29 lawmakers in Arizona urging them to improperly replace the state’s electors for Joe Biden. (The Justice Department is conducting a separate inquiry into the fake electors scheme.)
“The more we learn about her activities, the even clearer it becomes that Thomas cannot sit in any case concerning the election or the ‘Stop the Steal’ effort or the insurrection,” said Stephen Gillers, a New York University law professor and author of a widely used casebook on judicial ethics.
But with no binding code of conduct, the only check on a Supreme Court justice who refuses to recuse from case that poses a conflict of interest is impeachment by Congress. That step has been taken just once in the nation’s history, in 1804, and is highly unlikely in today’s polarized political climate.
The controversy surrounding the Thomases, one of Washington’s premier power couples, comes as the court’s approval rating has fallen to a five-decade low at just 25 percent, according to a new Gallup Poll, after pitched battles over nominations and in anticipation of Roe’s reversal following an unprecedented leak of a draft opinion. The Roe decision Friday sparked protests nationwide and intensified the spotlight on Clarence Thomas.
President Biden specifically called out Thomas Friday in warning the court was taking the nation on “an extreme and dangerous path,” citing his concurrence urging the reconsideration of other landmark rulings such as one protecting the right to access and use contraception.
“Courts don’t have armies. They don’t have the power of the purse. What they have is a public that’s willing to abide by their rulings even when they don’t agree with them,” said Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice, a nonpartisan think tank. “When that trust is faltering, that really goes to the very core of the court’s role in our democracy and the justices ability to do their job.”
But legal experts predicted there’s little chance Thomas would recuse himself from any case revolving around the 2020 election, even though the court is under increasing pressure to adopt a code of conduct amid a push for one from lawmakers.
“If you look at anybody on the court who’d probably be most immune to public criticism by now, it would be him. He’s been going through this for 31 years now,” said John Yoo, a University of California, Berkeley, law professor and a former Thomas clerk who has known him for years and believes the conflict of interest allegations are unfair.
“I don’t think it would cause him to change his mind in how he votes on any case,” Yoo said. “And I don’t think it would cause him to change his mind on how he applies the conflict of interest principles to himself.”
Ginni Thomas acknowledges in the new book that, “I’ve been a pretty political person” and asserted that “the left” has been trying to take her and her husband down for years.
“They really don’t like Black conservatives,” she said. Thomas was just the second Black justice to join the court, replacing the first one, civil rights icon Thurgood Marshall.
Ginni Thomas dismissed criticism of her activism by noting “there have been other judges who have had spouses in the public sphere.” She cited Ed Rendell, the former Pennsylvania governor and chairman of the Democratic National Committee, who was married to Marjorie Rendell, a federal appeals court judge. They divorced in 2016.
But there are binding conflict of interest rules for all federal judges below the Supreme Court. And Ginni Thomas’s activism as the spouse of a justice stands alone. Over the years, she has worked as an aide for a top Republican congressman, then at the conservative Heritage Foundation think tank, before running her own advocacy group. She now operates a Washington firm called Liberty Consulting. Supreme Court rules do not require Clarence Thomas to disclose who his wife’s firm works for or funds it.
While at Heritage in 2000, Ginni Thomas gathered resumes for a possible George W. Bush administration. But Clarence Thomas rebuffed calls for him to recuse from the Bush v. Gore case that decided the election. Thomas cast the deciding vote in the 5-4 ruling that made Bush president.
In 2011, 74 House Democrats wrote to Clarence Thomas asking him to recuse from any cases involving the Affordable Care Act because of his wife’s work for Heritage, which opposed the law. He declined and voted against upholding the law in 2012.
“She’s working on the nascent Bush administration before Bush v. Gore is decided. She’s trying to overturn Obamacare. She’s trying to overturn the  election,” said Gabe Roth, executive director of Fix the Court, which advocates for a more open and accountable federal judiciary. “It’s a real Forrest Gump-type existence that none of the other previous hundred-odd Supreme Court spouses have lived.”
Ginni Thomas’s involvement in efforts to overturn the 2020 election take the conflict of interest concerns to a new level. She sent 21 text messages to Meadows in the weeks after the election urging a push to overturn the results, The Washington Post reported in March.
“Help This Great President stand firm, Mark!!!” she wrote in one of them. In response to a Nov. 24 text from Meadows that he was intent on fighting for Trump’s victory, Ginni 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!”
The e-mails did not make clear who the “best friend” Ginni Thomas was referring to, although she has frequently referred to her husband that way. But amid questions about her Jan. 6 involvement before the texts were revealed, she said in an interview with the Washington Free Beacon, a conservative news site, that “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”
Meadows provided the text messages to the House committee after the Supreme Court turned down a request by Trump in January to block the release of White House records. Clarence Thomas filed the lone dissent.
“He never should have participated in that case,” said Richard Painter, a University of Minnesota law professor who served as the chief ethics lawyer in the George W. Bush administration. “He absolutely needs to stay away from these Jan. 6 cases. This is going to lead to the furthering of the impression that the Supreme Court is just a political body where justices are put on there to carry out the will of the political party of the president who put them there.”
The pressure on Clarence Thomas to recuse from new cases increased in recent days after The Washington Post reported that the committee had obtained e-mails between Ginni Thomas and John Eastman, a lawyer at the center of the discredited legal theory that then-Vice President Mike Pence had the power to overturn the 2020 election results.
At the same time, The New York Times reported that Eastman said in a December 2020 e-mail to another lawyer there was a “heated fight” among the Supreme Court justices about whether to hear arguments about overturning the election. Eastman has denied the information came from Ginni Thomas. Still, the Jan. 6 committee wants to speak to her and she told The Daily Caller she looked forward to the opportunity to “clear up any misconceptions.”
Committee chairman Bennie Thompson, a Mississippi Democrat, said Friday that he had concerns about Clarence Thomas ruling on any cases involving the election or the insurrection, although he stopped short of calling for his recusal.
“It raises significant flags obviously just because the wife of a Supreme Court justice is so prominently positioned in this situation,” Thompson said.
Others lawmakers have been clear that Thomas should recuse. Two dozen congressional Democrats, led by Senator Elizabeth Warren of Massachusetts and Representative Pramila Jayapal of Washington, sent a letter to Clarence Thomas and Chief Justice John Roberts in March calling upon Thomas to explain his failure to recuse from earlier cases involving the election or the insurrection and to recuse himself from any future ones.
They cited the judicial conduct law that applies to all federal judges, including Supreme Court justices, requiring recusal from any proceeding in which their “impartiality might reasonably be questioned.”
But Thomas has given no indication he intends to do so. A spokeswoman for the Supreme Court did not respond to an e-mail request for comment. Warren and others are pushing for a binding code of conduct for the Supreme Court that would cover recusals. But the court has resisted putting one in place and there are constitutional questions about whether Congress could impose one.
So, if Thomas stays the course, he and his wife are risking further harm to the court’s standing, said Gillers, the NYU law professor.
“Nothing she did that we are aware of yet is illegal,” he said of Ginni Thomas’s involvement in efforts to overturn the election. “She has a right to do it, but it’s not the norm. And by behaving this way, she has endangered the credibility, the reputation of the court.”