The New Yorker - USA (2022-01-31)

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“something like a hundred and twenty
people on that Listserv.” In Ward’s view,
they comprise “an élite right-wing com-
mando movement.” Justice Thomas, he
says, doesn’t post on the Listserv, but his
wife “is advocating for things directly.”
Ward added, “It’s unprecedented. I have
never seen a Justice’s wife as involved.”
Clarence and Ginni Thomas declined
to be interviewed for this article. In re-
cent years, Justice Thomas, long one
of the Court’s most reticent members,
has been speaking up more in oral ar-
guments. His wife, meanwhile, has be-
come less publicly visible, but she has
remained busy, aligning herself with
many activists who have brought issues
in front of the Court. She has been one
of the directors of C.N.P. Action, a dark-
money wing of the conservative pres-
sure group the Council for National Pol-
icy. C.N.P. Action, behind closed doors,
connects wealthy donors with some of
the most radical right-wing figures in
America. Ginni Thomas has also been
on the advisory board of Turning Point
USA, a pro-Trump student group, whose
founder, Charlie Kirk, boasted of send-
ing busloads of protesters to Washing-
ton on January 6th.
Stephen Gillers, a law professor at
N.Y.U. and a prominent judicial ethicist,
told me, “I think Ginni Thomas is be-
having horribly, and she’s hurt the Su-
preme Court and the administration of
justice. It’s reprehensible. If you could
take a secret poll of the other eight Jus-
tices, I have no doubt that they are ap-
palled by Virginia Thomas’s behavior.
But what can they do?” Gillers thinks
that the Supreme Court should be bound
by a code of conduct, just as all lower-
court judges in the federal system are.
That code requires a judge to recuse him-
self from hearing any case in which per-
sonal entanglements could lead a fair-
minded member of the public to question
his impartiality. Gillers stressed that “it’s
an appearance test,” adding, “It doesn’t
require an actual conflict. The reason we
use an appearance test is because we say
the appearance of justice is as important
as the fact of justice itself.”


he Constitution offers only one
remedy for misconduct on the Su-
preme Court: impeachment. This was
attempted once, in 1804, but it resulted
in an acquittal, underscoring the inde-

pendence of the judicial branch. Since
then, only one Justice, Abe Fortas, has
been forced to step down; he resigned
in 1969, after members of Congress
threatened to impeach him over alleged
financial conflicts of interest. Another
Justice, William O. Douglas, an envi-
ronmental activist, pushed the limits of
propriety by serving on the board of the
Sierra Club. In 1962, he resigned from
the board, acknowledging that there
was a chance the group would engage
in litigation that could reach the Court.
The historian Douglas Brinkley, who
is writing a book about the environ-
mental movement, told me, “I think
Bobby and Jack Kennedy told Douglas
to cool his jets.”
In recent years, Democrats have been
trying to impose stronger ethics stan-
dards on the Justices—a response, in
part, to what Justice Sonia Sotomayor
has described as the “stench” of parti-
sanship on the Court. In 2016, Repub-
licans in Congress, in an unprecedented
act, refused to let President Barack
Obama fill a vacancy on the Court.
Trump subsequently pushed through
the appointment of three hard-line
conservative Justices. Last summer,
Democrats in Congress introduced
a bill that would require the Judicial
Conference of the United States to
create a binding code of conduct for
members of the Supreme Court. They
also proposed legislation that would
require more disclosures about the fi-
nancial backers behind amicus briefs—
arguments submitted by “friends of
the court” who are supporting one side
in a case.
So far, these proposals haven’t gone
anywhere, but Gillers notes that there
are extant laws circumscribing the eth-
ical behavior of all federal judges, in-
cluding the Justices. Arguably, Clarence
Thomas has edged unusually close to
testing them. All judges, even those on
the Court, are required to recuse them-
selves from any case in which their
spouse is “a party to the proceeding” or
is “an officer, director, or trustee” of an
organization that is a party to a case.
Ginni Thomas has not been a named
party in any case on the Court’s docket;
nor is she litigating in any such case.
But she has held leadership positions
at conservative pressure groups that have
either been involved in cases before the

Court or have had members engaged
in such cases. In 2019, she announced a
political project called Crowdsourcers,
and said that one of her four partners
would be the founder of Project Veri-
tas, James O’Keefe. Project Veritas tries
to embarrass progressives by making se-
cret videos of them, and last year peti-
tioned the Court to enjoin Massachu-
setts from enforcing a state law that
bans the surreptitious taping of public
officials. Another partner in Crowd-
sourcers, Ginni Thomas said in her an-
nouncement, was Cleta Mitchell, the
chairman of the Public Interest Legal
Foundation, a conservative election-law
nonprofit. It, too, has had business be-
fore the Court, filing amicus briefs in
cases centering on the democratic pro-
cess. Thomas also currently serves on
the advisory board of the National As-
sociation of Scholars, a group promot-
ing conservative values in academia,
which has filed an amicus brief before
the Court in a potentially groundbreak-
ing affirmative-action lawsuit against
Harvard. And, though nobody knew it
at the time, Ginni Thomas was an un-
disclosed paid consultant at the conser-
vative pressure group the Center for Se-
curity Policy, when its founder, Frank
Gaffney, submitted an amicus brief to
the Court supporting Trump’s Muslim
travel ban.
Bruce Green, a professor at Ford-
ham specializing in legal ethics, notes,
“In the twenty-first century, there’s a
feeling that spouses are not joined at
the hip.” He concedes, though, that “the
appearance” created by Ginni Thom-
as’s political pursuits “is awful—they
look like a mom-and-pop political-hack
group, where she does the political stuff
and he does the judging.” It’s hard to
imagine, he told me, that the couple
doesn’t discuss Court cases: “She’s got
the ear of a Justice, and surely they talk
about their work.” But, from the tech-
nical standpoint of judicial ethics, “she’s
slightly removed from all these cases—
she’s not actually the legal director.”
Green feels that the conflict of interest
is “close, but not close enough” to re-
quire that Thomas recuse himself.
David Luban, a professor of law
and philosophy at Georgetown, who
specializes in legal ethics, is more con-
cerned. He told me, “If Ginni Thomas
is intimately involved—financially or
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