Opinion | Clarence Thomas Should Be Used to the Smears by Now

Not for the first time or presumably the last, the dogs are out for Justice Clarence Thomas.

The justice, whose confirmation fight set the standard for nasty campaigns of personal destruction and who has been the subject of insulting attacks throughout his tenure casting him as not truly up for the job, is now getting smeared as a politicized tool for the advancement of his wife’s agenda.

In a sentiment typical of this latest anti-Thomas campaign, Sen. Ron Wyden (D-Ore.) says that his “conduct on the Supreme Court looks increasingly corrupt.”

This is a heavy charge to make that, in a better world, would require at least a scintilla of evidence — say, a pattern suggesting a quid pro quo, compromising information found on a wayward laptop or, failing that, something, anything, untoward.

What the justice’s critics have is a series of texts from his political activist wife, Virginia, known as Ginni, to then-White House chief of staff Mark Meadows in the aftermath of the 2020 election urging him to fight against what she calls “the greatest Heist of our History.”

These texts are feverish and apocalyptic, and unless you believe that the election was stolen, wince-inducing. The messages, though, don’t require Thomas to recuse himself from 2020 election- or Jan. 6-related cases, let alone prove that he has done anything out of bounds or corrupt.

The federal law on recusal says that a judge should recuse himself or herself when a spouse has “an interest that could be substantially affected by the outcome of the proceeding.” A New York University law professor named Stephen Gillers told The New York Times that her texts mean that Ginni Thomas meets this standard: “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.”

This is absurd. If a reader or a friend regularly texts me about National Review’s editorial policy — and it occasionally happens! — that doesn’t make him part of the National Review editorial team.

Ginni Thomas wasn’t party to any election-related litigation. She didn’t write an amicus brief in any of the litigation. She didn’t even give Meadows any legal advice, besides to keep Sidney Powell front and center (a very bad idea that wasn’t acted on).

Telling Meadows that Trump should avoid conceding, stay strong and allow time for a grassroots political army to build to challenge the results may have been foolhardy political advice, but it was political advice.

At the end of the day, Ginni Thomas didn’t have any more or any less interest in election-related litigation than any other Republican who believed Trump’s claims of fraud, and there were millions of them.

Another provision of the recusal law says that a judge should recuse “in any proceeding in which his impartiality might reasonably be questioned.” The operative word here is “reasonably.” It can’t be that the mere fact of politically motivated people questioning a justice’s impartiality means that his or her objectivity has been reasonably questioned. If that were true, both sides could knock out justices they don’t like simply by questioning their impartiality.

Of course, it’s true that Ginni Thomas is not impartial, but neither is she the Supreme Court justice in the family. And it hasn’t been the practice to attribute views of a spouse to a judge or a justice.

Conservative lawyer Mark Paoletta points to the example of liberal 9th Circuit Judge Stephen Reinhardt, who refused to recuse despite his wife’s advocacy in a case. Reinhardt maintained, reasonably enough, that his wife’s “views are hers, not mine, and I do not in any way condition my opinions on the positions she takes regarding any issues.”

Put aside spouses; we have recent precedent for justices with a direct connection to cases not recusing. Elena Kagan didn’t recuse herself from the Obamacare case, even though she was solicitor general when the Obama administration strategized about how to defend the law. Stephen Breyer didn’t recuse when the Supreme Court decided on the constitutionality of sentencing guidelines that he had a large hand in shaping prior to joining the court.

All that said, should Thomas recuse just to stay far away from straying over any line?

Antonin Scalia took up this question when he was pressured to recuse himself in a 2004 case involving Vice President Dick Cheney’s energy task force after being part of a duck hunting trip with Cheney.

Scalia argued, persuasively, that the standard shouldn’t to be to resolve any possible doubt in favor of recusal, because the Supreme Court isn’t a court of appeals, where a recusing judge is simply replaced by another judge. When a Supreme Court justice recuses, he or she is off the playing field and an eight-justice court decides the case, perhaps changing the outcome. This is why the justices said in their Statement of Recusal Policy issued in 1993 that they “do not think it would serve the public interest to go beyond the requirements of the statue, and to recuse ourselves, out of an excess of caution.”

Scalia points out that there is no precedent for justices recusing themselves in cases involving friends who are government officials. Indeed, justices have been friends with high-level government officials throughout the history of the court — that’s often how they got on the court in the first place. Much of the Supreme Court that decided the famous Youngstown case involving Harry Truman’s seizure of the steel mills, Scalia notes, were friends of President Truman, with four having been appointed by him.

Further, Scalia noted, nothing in the case would bear on the “reputation and integrity” of Cheney.

Scalia’s memorandum drives home how attenuated the case for a Clarence Thomas recusal is.

Ginni Thomas is not even a government official. She is a private citizen who was relaying advice to a government official, Mark Meadows, who may or may not have been taking it seriously or doing anything with it. The tone of his brief replies via text suggests that he was being polite, as one tends to be when getting heartfelt messages from a friend. Certainly, Ginni Thomas was not in any way in the Trump inner circle, or she wouldn’t have had to text encouragement, questions and occasional advice to Meadows, who surely — given the circumstances and his position — was getting similar messages from all sorts of other people.

If an energy task force ruling wouldn’t have affected Cheney personally, then it is even truer that an election decision wouldn’t have affected the reputation or integrity of Ginni Thomas one way or the other.

Critics of Thomas focus on his position in several election- or Jan. 6-related cases.

He dissented when the court turned away a meritless challenge by the state of Texas targeting election practices in other states. The dissent reflected Thomas’ well-considered view that the Court shouldn’t summarily dismiss so-called original jurisdiction cases, and he was joined by Justice Samuel Alito, who shares his view. Both Thomas and Alito also dissented when the court turned away a suit filed by Nebraska and Oklahoma to prevent Colorado from legalizing marijuana, and in another such case, Arizona v. California.

Obviously, the two justices don’t take this position on original jurisdiction cases because Ginni Thomas told them to, or to advance her agenda or protect her.

Thomas dissented, as well, from the court’s rejection of Trump’s emergency application to block the release of White House records regarding the Jan. 6 Capitol riot. In this, Thomas was alone. We can’t know what his reasoning was, because he didn’t explain himself. Thomas has a robust view of presidential power, though, and it’s not unusual for him to go his own way.

In the 2020-2021 term, Thomas authored more concurrences and dissents than any of the other justices, including more solo concurrences and solo dissents.

As Nina Totenberg of NPR put it not too long ago, in a passage dripping with disapproval, “He is the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it’s unconstitutional to require campaign funders to disclose their identity; he’s the only justice who voted to strike down a key provision of the Voting Rights Act; and the only justice to say that the court should invalidate a wide range of laws regulating business conduct and working conditions.”

But we are supposed to believe that his unexplained sole dissent in the Trump records case must be corrupt.

The court also turned aside a related appeal, one in which Meadows filed a friend-of-the-court brief, with no dissent from Thomas.

Intellectual consistency, whether it means going it alone or staking out unpopular or easily distorted positions, has been a hallmark of Thomas’ jurisprudence for three decades now. His critics are free to criticize his approach and to rue its results, but they have no grounds to question his sincerity or integrity. That hasn’t stopped them, of course. And, by now, unfortunately, Justice Thomas should be used to it.