Here's why Ginni Thomas can get away with supporting sedition
Ginni Thomas speaking at the 2017 Conservative Political Action Conference in National Harbor, Maryland. (Gage Skidmore/Flickr)

It’s not clear to me yet why Virginia “Ginni” Thomas admitted to being at the gathering that came before the J6 insurrection. But I’m sure the spouse of Supreme Court Justice Clarence Thomas has her reasons.

Ginni Thomas told the Washington Free Beacon Monday that she attended the rally organized by the former president to “stop the steal.” She said she left before Donald Trump ordered a throng of insurgents, some armed, to sack and loot the seat of government.

“There are important and legitimate substantive questions about achieving goals like electoral integrity, racial equality and political accountability that a democratic system like ours needs to be able to discuss and debate rationally in the political square. I fear we are losing that ability,” she told the Free Beacon, a rightwing paper.

Thing is, those “important and legitimate substantive questions” had been addressed and settled by one federal judge after another. They had been answered by Republican secretaries of state in states won by the current president. You’d think the wife of a Supreme Court justice would respect court rulings. I suppose that might be too much to ask.

Like I said, it’s not clear to me why she outed herself. It could be she’s aware of a forthcoming story about to come to light, and turned to a sympathetic news outlet to “get ahead of the story,” as elites say. That way she can minimize damage to her and her husband’s public image.

If I were to guess, I’d say Ginni Thomas was aware of Donald Trump’s effort to pressure the former vice president, Mike Pence, into sending certified electoral votes back to states, which would reelect Trump, or otherwise sabotage the situation so the Supreme Court had to decide.

That would be bad. It would mean some people are above the law. Unfortunately, we don’t need a treasonous conspiracy to know that.

Ginni Thomas is untouchable.

She’s a leading figure in right-wing politics. Her activism frequently involves cases Justice Thomas will hear. She is a middleman, as it were, between the GOP’s very obscenely rich donor class and the court’s GOP supermajority, which is eager to give what’s asked of them.

There’s nothing you can do about it.

When the people are powerless, democracy isn’t all that.

Even if Congress were to pass laws regulating the behavior of Supreme Court justices, who would enforce those laws. The US Department of Justice? The FBI? Which among all the federal law enforcement agencies would investigate a justice’s spouse? The Congress? Hardly. It couldn’t remove a president for extortion.

I talk about this and other depressing things with Gabe Roth. He’s the executive director of Fix the Court, a nonprofit dedicated to reforming the federal judiciary, especially the highest court. When no one is above a justice, Gabe said, “you're free to do whatever you want.”

“I think that bulletproof-ness rubbed off on Ginni Thomas.”

With normal people in mind, can you explain whether it’s wrong for the spouse of a Supreme Court justice to be politically active?

It's not wrong for a justice's spouse to be politically active. Justices' spouses can and should have their own lives and their own jobs.

But Ginni Thomas is different from any other Supreme Court spouse in the history of Supreme Court spouses in terms of her brand of activism and how so much of it intersects with the court’s work.

She's been the Forrest Gump of rightwing activism for the last three decades. When Bush v. Gore [which decided the 2000 election] was at the court, she was vetting resumes for a potential Bush administration.

As Obamacare reached the court, she was lobbying against the law.

When a case on whether Congress could subpoena certain J6-related records was at the court, she was signing a letter saying Congress was harassing “private citizens who have done nothing wrong."

Supreme Court justices are supposed to recuse themselves from cases in which their "impartiality might reasonably be questioned."

Justice Thomas has often said he and Ginni are one – fused together in the fire of his confirmation. He’s said there’s no daylight between them.

These comments make me — and I think I'm pretty reasonable about this — question his impartiality on several issues before the court.

Has Thomas ever ruled against his wife's interests?

It's hard to quantify since the court has issued more than 2,000 rulings since Thomas joined it in 1991. But in general, the answer is no.

On major cases, the Republican justices rule the way average Republicans would want them to rule. Similarly, the Democratic justices rule the way average Democrats would want them to rule.

The Republican exceptions — Roberts on Obamacare, Kennedy on gay marriage, Gorsuch on tribal sovereignty — don't include Thomas.

How would you characterize Ginni Thomas's brand of politics?

Mean-spirited and misinformed. How can you be a functioning adult and think it's OK to share memes on Facebook related to the Holocaust, saying gun control is the reason 6 million Jews died?

Hoo-boy.

She gives out awards every year to some of the most brazen, shameless and horrible people you can imagine. Covid deniers, election-fraud maker-uppers, anti-Muslim bigots, the works.

With respect to gun control causing 6 million Jews to die, I wonder if perhaps she does know it's not OK, but she’s saying it anyway. From that perspective, we can see the role of bad faith. Someone like that could violate conflicts of interest norms knowing they were.

The truth is there really are no set conflict-of-interest rules if you're a Supreme Court justice. Rules only work if there are consequences. If there's no one above you, if you're never going to be impeached and removed since it's too hard, you're free to do whatever you want.

I think that bulletproof-ness rubbed off on Ginni Thomas.

With that in mind, there's no way of holding a justice’s spouse accountable for her role, however, minimal in J6. Am I correct?

Correct.

I would bet the J6 Committee would be squeamish about subpoenaing Ginni Thomas, though they did subpoena Donald Trump’s former White House Chief of Staff Mark Meadows, with whom Ginni is close.

They don't want to be seen as "political," and I could imagine some of them think that going after a justice's spouse would be seen that way.

So it's possible for the spouse at the Supreme Court justice to be engaged in sedition, a crime that could rise up to the Supreme Court, and the justice in question could rule in favor of his spouse?

Yes.

That’s fucked up.

Ginni Thomas would say she left before the crime happened.

She already said she left in remarks made to the Washington Free Beacon. If she's bulletproof, why bother going to a sympathetic newspaper to explain why she's not guilty of anything?

My guess is enough people saw her at the Ellipse that the story of her being there was going to get out. She wanted to get ahead of it.

So what if the story got out, though?

My guess is that more is coming out – that she was in touch with Meadows or someone on J6 who’s been subpoenaed. She wanted to quash the rumor she paid for buses to get people to DC that day.

So what’s the solution to a laughably corrupt system, as it appears to be? Can Congress put teeth in conflict-of-interest norms?

First, they can require justices to write and adopt a code of conduct that sets expectations for conduct inside and outside the court.

Second, they can require justices to explain when they recuse themselves and make it easier for litigants to ask why they don't recuse in cases in which there's a perceived conflict of interest.

Third, they can amend the federal recusal statute to say that if you as a justice received a benefit from an individual or group — whether a gift, a free trip or personal hospitality — you have to sit out SCOTUS cases brought by that individual or group for a certain number of years

Fourth, they can hold more oversight hearings so judicial ethics issues are in the open, not merely discussed whenever a justice messes up.

I could keep going.

Yes, please.

Fifth, they could require that judges and justices put annual financial disclosure reports online (currently they're placed on thumb drives and the disclosures office always has a multi-year backlog).

Congress could require that every time a judge or justice buys or sells a stock, or other financial instruments, they have to file a contemporaneous transaction report, as members of Congress must.

Sixth, Congress could write a law that would require justices to take senior status after 18 years, so they'd keep life tenure, but after 18 years, they'd have to move to a lower court – or they could fill back in at the Supreme Court in case of an unexpected vacancy.

Seventh, they could require judges and justices to fill out contemporaneous travel reports, as members of Congress must. These show in real-time who's paying who for what (flights, hotels, etc).

These sound good, but rules and laws don't mean much unless they're enforced. Assuming Merrick Garland would never touch a case involving a Supreme Court justice’s spouse, who would enforce these laws and rules even if they were enacted?

That'd be my assumption, yes.

The DOJ wouldn’t bring charges against a Supreme Court spouse.

It'd have to be a bribe to get to that point.

A bribe would be blessedly simple, but what about a spouse of a Supreme Court justice who’s cheerleading sedition?

I don't see how that's enforced, correct.

This is very depressing isn't it?

I guess. I'm used to it.