Campaign Action
Supreme Court Justice Clarence Thomas has been under fire by judicial watchdog groups for ethics issues for a good part of his tenure, but particularly since the rise of the tea party. That's because his wife, Ginni, has been an integral organizer in that movement. She's still at it, this time in a way that suggests her husband should be recusing himself from any challenge to the Trump administration's actions. In the immediate term, that means a potential challenge to his Muslim ban.
In an email sent to a conservative listserv on Feb. 13 and obtained by The Daily Beast, Ginni Thomas asked an interesting question: How could she organize activists to push for Trump’s policies?
“What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable?” she wrote.
“I see the left has Daily Action @YourDailyAction and their Facebook likes are up to 61K,” she continued. [...]
“But there are some grassroots activists, who seem beyond the Republican party or the conservative movement, who wish to join the fray on social media for Trump and link shields and build momentum,” she wrote. “I met with a house load of them yesterday and we want a daily textable tool to start… Suggestions?”
Heidi Li Feldman, a professor at Georgetown Law School and expert on legal ethics, says that's enough for lawyers challenging Trump's travel ban to have a "a non-frivolous disqualification motion" to ask Thomas to recuse himself should the case make it to the Supreme Court. It's not necessarily a problem for a justice to have a political spouse, but this instance is "pretty egregious," Feldman says. "It’s pretty clear that it’s quite partisan and in context, given the date of the email and that the tool is meant to rebut activity on the left—what has the left been really active on? The executive orders. So minimally, I would say the author of the email is thinking of that executive action. It’s so specific, it’s so narrowly tailored. […] I was taken aback."
Here's one reason why the Supreme Court is extraordinary—it's entirely up to Thomas whether or not he recuses. He could say he would be completely impartial on this, despite his wife's active involvement, and that's that. There is no higher authority over the Supreme Court, and the justices are not subject to the same ethics rules that all other federal judges are bound to. Thomas has recused himself once from a case because of family connections. In 1996 in a case involving enrollment at the Virginia Military Institute came before the court, and he recused because his son was attending the school. He famously did not recuse when the court was hearing any challenges to the Affordable Care Act despite his wife's very public and very political opposition to the law.
This time, though, things are a little more tenuous all the way around, for the court and for the administration. Trump is already beleaguered and the court might be feeling the need to tread lightly around him, particularly Chief Justice John Roberts who always has an eye on his legacy. They don't want to give any additional ammunition to the opposition when it comes to confirming Trump's baby-Scalia nominee Neil Gorsuch, or any potential subsequent Trump nominees. Who knows whether or not any of these considerations would sway Thomas, though. He's as much a political animal as his wife, and isn't going to let a simple thing like ethics stop him.