July 3, 2022

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Clarence Thomas Has Recused Himself From Cases Involving His Son — But Not His Wife

Supreme Court Justice Clarence Thomas has recused himself from cases before the court 54 times since 1993, including 17 times to avoid the potential perception of a conflict of interest created by his son, according to records collected by the group Fix The Court.

Thomas is currently under fire for failing to recuse himself from cases related to the Jan. 6, 2021, insurrection after text messages from his wife, Virginia (Ginni) Thomas, to then-White House chief of staff Mark Meadows revealed her active participation in the effort to overturn the results of the 2020 election.

Initially, Meadows voluntarily disclosed the messages to the House committee investigating the Jan. 6 attack on the Capitol. Later, on Dec. 7, 2021, he stopped cooperating with the committee and claimed executive privilege to prevent further disclosures.

The Supreme Court ruled 8-1 against assertions of executive privilege by ex-President Donald Trump and his ex-aides, including Meadows. Thomas cast the lone vote of dissent in the case. Now, it’s clear that the disclosures in question could have provided more evidence of his wife’s involvement in the plot to overthrow the results of the 2020 election.

Thomas’ past recusals show that he is not ignorant of the rules outlining when federal judges must disqualify themselves from participating in a case.

There’s a range of reasons judges recuse themselves from legal proceedings. The most common ones are prior participation in a case as a judge or prior employment at an entity involved in a given case. Judges are also meant to recuse themselves from cases in which they are a named party.

Since 1993, Thomas has recused himself at least 19 times from 18 different cases for either being named in the petition, having previously heard the case as an appeals court judge, or because his former employer was named as a party.

Judges are also required to recuse themselves from cases where their “impartiality might reasonably be questioned,” when they have “a personal bias or prejudice concerning a party” or when it “[i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

There is, however, no mechanism to compel justices to recuse themselves from cases.

This relevant section of the U.S. legal code on judicial recusals is the one Thomas abided by when he recused himself 17 times from seven cases involving either his son’s university or employer.

In 1995, Thomas recused himself at multiple stages during the Virginia v. U.S. case challenging Virginia Military Institute’s male-only admission policy. Thomas’ son attended the institute at the time.

Thomas also recused himself from six cases involving the bank Wachovia from 2004-2007 because his son worked at Wachovia Securities.

“The Wachovia cases, those are the real interesting ones,” said Gabe Roth, executive director of Fix The Court, “because he is recusing due to an interest of a family member. That’s textbook Supreme Court recusal.”

But Thomas has never recused himself from a case where a potential conflict of interest may exist involving his wife. The issue has come up over the past decade when her career as a conservative political activist intersected with cases on which he would rule.

Supreme Court Justice Clarence Thomas did not recuse himself from cases related to the Jan. 6, 2021, insurrection despite his wife’s involvement in efforts to overturn the 2020 election result.

Patrick Semansky via Associated Press

In 2009, Ginni Thomas founded a “tea party” nonprofit called Liberty Central to help defeat President Barack Obama’s signature legislative accomplishment, the Affordable Care Act. She raised $550,000 from undisclosed donors to fund it. This prompted the nonprofit Common Cause to call on Clarence Thomas to recuse himself from the Citizens United v. Federal Election Commission case challenging limits on corporate political spending. He did not.

Further investigation by Common Cause revealed that Clarence Thomas had failed to disclose the $686,589 salary his wife earned from the conservative Heritage Foundation, a major opponent of Obama’s health care law, from 2003-2007.

Clarence Thomas filed seven pages of amended financial disclosures to correct his failure for 20 years to report his wife’s salaries from groups involved in conservative politics, including the Heritage Foundation and Hillsdale College. He claimed that he was confused by the forms and had made the omission “inadvertently.”

Not everyone took his excuse at face value.

“To believe that Justice Thomas didn’t know how to fill out a basic disclosure form is absurd,” then-Rep. Louise Slaughter (D-N.Y.) wrote in a letter joined by 19 other Democrats to the Judicial Conference of the United States recommending a referral to the Department of Justice for criminal investigation. But no further action took place.

At least 74 Democrats called for Thomas’ recusal from cases challenging the constitutionality of the Affordable Care Act due to his wife’s work to defeat the legislation and her prior work for organizations backing lawsuits to overturn the law. He ultimately did not recuse himself.

While there were arguments in favor and against Thomas’ recusal in the health care cases, Roth says there is something different about the Jan. 6 cases — especially those involving the disclosure of Trump White House documents.

Ginni Thomas had an ideological interest in the outcome of the Affordable Care Act cases — but she has a personal interest in protecting herself in the Jan. 6 cases. When her husband dissented from releasing White House documents to the Jan. 6 committee, he was voting to shield her from legal scrutiny.

“We don’t know everything that’s going to come about,” Roth said. “We don’t know how intimately she was involved in this effort.”

The Jan. 6 committee has invited Ginni Thomas to testify. Meanwhile, 24 Democrats, including House Judiciary Committee Chair Jerrold Nadler (N.Y.) and multiple members of the Senate Judiciary Committee have signed a letter to Clarence Thomas and Chief Justice John Roberts demanding that Thomas issue a written explanation of his failure to recuse himself from the Jan. 6 cases. They also demand that he recuse himself from any future case related to the Jan. 6 attack and that Roberts commit to creating “a binding Code of Conduct” for the court no later than April 28.

In remarks to the House Democratic caucus, Speaker Nancy Pelosi noted, “It’s up to an individual justice to decide to recuse himself if his wife is participating in a coup.”

CORRECTION: A previous version of this article misstated the number of Democrats who signed the letter to Thomas and Roberts.