In recent weeks, there has been no shortage of words written about Ginni Thomas, the hard-right conservative activist and wife of Supreme Court Justice Clarence Thomas. 

“Is Ginni Thomas a Threat to the Supreme Court?” asked the New Yorker’s Jane Mayer. The New York Times Magazine, in a long profile, reported that Ms. Thomas was involved in the effort to overturn the results of the 2020 election on behalf of Donald Trump. 

Ms. Thomas’s conduct gets to the heart of questions about the Supreme Court’s legitimacy as a nonpartisan institution. But it also raises a more fundamental human question: where should we draw the line when it comes to spousal conflicts of interest?

Ms. Thomas’s career as a prominent conservative activist and fundraiser spans more than three decades, but it is her recent behavior that has drawn particular scrutiny. In 2019, Ms. Thomas joined the nine-member board of the political arm of the Council for National Policy (CNP), which the Southern Poverty Law Center has described as “a shadowy and intensely secretive group [that] has operated behind the scenes, providing a venue three times a year for powerful American politicians and others on the right to meet privately to build the conservative movement.” 

In the days following the November election, CNP circulated an “action steps” memo that instructed members to pressure Republican lawmakers to overturn the results of the election by appointing alternate slates of electors. The document, titled “Election Results and Legal Battles: What Now?” targeted legislators in three of the states that swung the election for Joe Biden — Arizona, Georgia and Pennsylvania. 

That effort ultimately proved unsuccessful. But if Ms. Thomas and other Trump allies had it their way, the dispute would have made its way to the Supreme Court, where it would’ve been heard by Justice Clarence Thomas. 

Ms. Thomas also reportedly assisted in the planning of the January 6th rally at the Capitol. According to the New York Times Magazine, a source within the conservative movement “was told that Ginni Thomas played a peacemaking role between feuding factions of rally organizers.”

She also served on the advisory board of Turning Point USA, a pro-Trump student group whose leader, Charlie Kirk, took credit for sending buses of protesters to Washington on January 6th. And on the day of the event, Ms. Thomas posted on Facebook: “LOVE MAGA people!!!! GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

With Ginni Thomas so mixed up in conservative causes, what obligation does Clarence Thomas have to recuse himself from cases where his wife may have a stake in the outcome?

Not much. While federal judges are bound by a code of conduct setting forth ethical standards for recusal, that code does not apply to Supreme Court justices. (The “For the People Act,” the sweeping democratic reform bill that is currently languishing in the Senate, has a provision that would require the Supreme Court to adopt an ethics code.) 

Supreme Court justices are subject to a federal statute compelling judges to recuse themselves from a case where their “impartiality might reasonably be questioned.” That statute, 28 U.S. Code § 455, also requires that judges disqualify themselves when a spouse is a party to a proceeding, is acting as a lawyer in the proceeding, or “is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” 

But that statute has no teeth. Justices themselves are the arbiters of whether their own impartiality “might reasonably be questioned.” The only remedy provided by the Constitution for a justices’ ethical violations is impeachment. That’s been attempted just once — in 1804 — and it resulted in an acquittal. Since then, only one Justice, Abe Fortas, has left the bench amid allegations of misconduct. He resigned in 1969, after members of Congress threatened to impeach him over alleged financial conflicts of interest. 

Stephen Gillers, a law professor at N.Y.U. judicial ethicist, told the New Yorker’s Jane Mayer: “I think Ginni Thomas is behaving horribly, and she’s hurt the Supreme Court and the administration of justice. It’s reprehensible. If you could take a secret poll of the other eight Justices, I have no doubt that they are appalled by Virginia Thomas’s behavior. But what can they do?” 

Orin Kerr, a law professor at the University of California, Berkeley, told the Times Magazine that Ms. Thomas’s outspoken activism is highly unusual for a Supreme Court spouse. “I’m sure there are justices’ spouses who have had strong opinions about politics,” Kerr said. “What’s unusual here is that Justice Thomas’s wife is an activist in politics. Historically, this is the first example of something like this that I can think of at the Supreme Court.”

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