Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him?
The nature of the text messages was enough to require recusal, legal experts said. But the Supreme Court has traditionally left such decisions to the discretion of the justice in question.WASHINGTON — The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.It is one thing, experts in legal ethics said on Friday, for the spouse of a Supreme Court justice to express political views, even ones shot through with wild conspiracy theories. That may not by itself require the justice’s recusal from cases touching on those views.But the text messages from Ms. Thomas, a longtime conservative activist who goes by Ginni, revealed something quite different and deeply troubling, experts said.The messages from Ms. Thomas to Mark Meadows, President Donald J. Trump’s chief of staff, sent during and just after the fraught weeks between the 2020 presidential election and the Jan. 6 attack on the Capitol, demonstrated that she was an active participant in shaping the legal effort to overturn the election.“I’m not sure how I would have come out if we just had a lot of texts from her saying that ‘this is terrible,’ said Amanda Frost, a law professor at American University in Washington.“But she wasn’t doing just that,” Professor Frost said. “She was strategizing. She was promoting. She was haranguing.”The texts were among about 9,000 pages of documents that Mr. Meadows turned over to the congressional committee investigating the Capitol attack. Democrats immediately seized on the disclosure to draw attention to the conflicts they said were presented by Ms. Thomas’s political activities and to press Justice Thomas to recuse himself from cases concerning the election and its aftermath. Senator Ron Wyden, Democrat of Oregon, said that Justice Thomas’s “conduct on the Supreme Court looks increasingly corrupt” and that he had been “the lone dissent in a case that could have denied the Jan. 6 committee records pertaining to the same plot his wife supported.”Justice Thomas, Mr. Wyden said, “needs to recuse himself from any case related to the Jan. 6 investigation, and should Donald Trump run again, any case related to the 2024 election.”But Justice Thomas, who was released from the hospital on Friday after being treated for the last week for flulike symptoms, has long been a pillar of the conservative establishment. Republicans, even those who have distanced themselves from Mr. Trump and the more extreme wing of their party, showed no interest in pressuring him to recuse himself.Ms. Thomas’s text messages were heated and forceful, urging Mr. Meadows to pursue baseless legal challenges. “Biden and the Left is attempting the greatest Heist of our History,” one said.Ms. Thomas’s activities should have prompted Justice Thomas to disqualify himself from cases related to them, said Stephen Gillers, a law professor at New York University.“He had an obligation not to sit in any case related to the election, the Jan. 6 committee or the Capitol invasion,” he said.Professor Frost agreed that the situation was “an easy case.”“When your spouse is conversing with people who have some control over litigation to challenge an election,” she said, “you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”But Justice Thomas did participate in a ruling in January on an emergency application from Mr. Trump asking the court to block release of White House records concerning the attack on the Capitol. The court rejected the request, in a sharp rebuke to the former president.Only Justice Thomas noted a dissent, giving no reasons.He also participated in the court’s consideration of whether to hear a related appeal, one in which Mr. Meadows filed a friend-of-the-court brief saying that “the outcome of this case will bear directly” on his own efforts to shield records from the House committee investigating the attacks beyond those he had provided.The Supreme Court last month refused to hear the case, without noted dissent. There was no indication that Justice Thomas had recused himself.In December 2020, around the time of the text messages, Justice Thomas participated in a ruling on an audacious lawsuit by Texas asking the court to throw out the election results in four battleground states. The court rejected the request, with Justices Thomas and Samuel A. Alito Jr. issuing a brief statement suggesting the majority had acted too soon in shutting the case down.In February 2021, Justice Thomas addressed election fraud in a dissent from the Supreme Court’s decision to turn away a challenge to Pennsylvania’s voting procedures.Ms. Thomas’s messages urged Mark Meadows, President Donald J. Trump’s chief of staff, to pursue baseless legal challenges.Oliver Contreras for The New York Times“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” he wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.”Justice Thomas did not respond to a request for comment on Friday.All federal judges, including Supreme Court justices, are subject to a federal law on recusal. The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”Judging by the nature of the text messages and the uproar over them, that provision alone is enough to require Justice Thomas’s recusal, legal experts said.A more specific provision concerning relatives, including spouses, might also apply to his situation. Judges should not participate, the law says, in proceedings in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”Professor Gillers said the word “interest” was the key.“By writing to Meadows, who was chief of staff and active in the ‘Stop the Steal’ movement, she joined the team resisting the results of the election,” Professor Gillers said. “She made herself part of the team and so she has an interest in the decisions of the court that could affect Trump’s goal of reversing the results.”The Trump InvestigationsCard 1 of 6Numerous inquiries. More