For three decades, Mrs. Thomas has been a familiar figure among conservative activists in Washington — since before she met her husband of 23 years, Justice Clarence Thomas of the Supreme Court. But this year she has emerged in her most politically prominent role yet: Mrs. Thomas is the founder and head of a new nonprofit group, Liberty Central, dedicated to opposing what she characterizes as the leftist “tyranny” of President Obama and Democrats in Congress and to “protecting the core founding principles” of the nation.
It is the most partisan role ever for a spouse of a justice on the nation’s highest court, and Mrs. Thomas is just getting started. “Liberty Central will be bigger than the Tea Party movement,” she told Fox News in April, at a Tea Party rally in Atlanta.
One doesn’t give up one’s basic rights to participate in the political process just because one has a spouse as a sitting federal judge. On the other hand it is generally thought unethical for sitting judges to preside over cases in which their spouse has actively advocated through political organizations for decisions to be made which are related to that advocacy. Let’s say Supreme Court Justice Sotomeyer was married and her husband’s was the head of an organization that advocated on behalf of women’s rights and personal autonomy. If a case related to abortion came before the court it would be up to Sotomeyer to recuse herself. This seems like a back burner issue. Much of the public cannot even name one of the Supreme Justices. Back in 2000 the SCOTUS ruled on the case Bush v. Gore. Then sitting Justice Sandra Day O’Connor probably should have recused herself from that case considering that she had such strong feelings about the senior Bush 41 and had expressed hopes a Republican would win so she could retire. At one time the SCOTUS had agreed to hear a case involving former VP Cheney and his energy task force. Justice Scalia and Cheney went duck hunting together before the decision was made. When confronted Scalia replied , “If it is reasonable to think that a Supreme Court justice can be bought so cheap the nation is in deeper trouble than I had imagined.” No one over the age of three thinks you can buy off a judge with a hunting trip, but it is reasonable to assume that such a close relationship with a judge will influence to whatever small extent an unbiased decision. Even if it would not have such an influence it has such an appearance to the public. We can never know the extent to which his relationship with Cheney has influenced his decisions on cases which have reached the court. Scalia did not see fit to recuse himself from Bush v. Gore despite ethical conflicts of interests. Scalia’s dismissals of these ethical concerns involving a case which resulted in both bad law and likely the most disastrous presidency in history have displayed the kind of arrogance one reads about Medieval princes. Like most modern conservatives there is the attitude the law is a guide only so far as it serves the agenda of the antithesis of democracy, conservatism.
The bigger question for many is how she (Mrs. Thomas) is financing these activities. Liberty Central reported the initial $550,000 on its 2009 tax return, though the identities of the two donors are redacted.
A federal law requires justices to recuse themselves in a number of circumstances where real or perceived conflicts of interest could arise, including in cases where their spouses could have a financial interest. But the decision to step aside is up to each justice; there is no appeal from the nation’s highest court.
“It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” said Deborah L. Rhode, a law professor and director of the Stanford University Center on the Legal Profession.
“The fact that we can’t find that out is the first problem,” she said, adding, “And how can the public form a judgment about propriety if it doesn’t have the basic underlying facts?”
M’s Thomas has clearly defined her political role as an advocate for some core legal principles and philosophies. These principles are the very ones at the center of cases presented to the SCOTUS. The SCOUTUS recently decided in favor of primarily corporate interests in the Citizens United case. M’s Thomas rises money from and advocates for a very clearly defined set of principles – which not coincidentally Justice Thomas used in his argument for Citizens, as did the other conservative Justices. These principles – actually more a set of objectives not based on any cogent philosophy explicit or implicit in the constitution – are part and parcel of the right-wing agenda. Justice Thomas is probably going to rule according to those rote memorized objectives whether M’s Thomas is an advocate or not. But since he will not likely recuse himself – Scalia is his mentor – observers will always wonder about the degree of influence via his wife’s activities. Considered from another perspective. How much money and influence is Ginni Thomas able to generate from being the spouse of a Justice. This influence rides on some degree of the tax payers dime since Justices are government employees. So we are all directly financing M’s Thomas’s political agenda via the couple’s government salary and benefits, and indirectly by giving them an inside track to government and corporate contacts which come by way of her husband’s Supreme Court appointment.
Dahlia Lithwick is a very good legal analyst who I agree with much of the time. While I think she might be a little to quick to dismiss Ginni Thomas’s obviously deep and public involvement with the far Right movement and advancing highly questionable interpretations of the Constitution. Lithwick does note Thomas’s links to the Right’s public incarnations such as Liberty Central and that organizations finances. That is in addition to being predictably hypocritical conservative views when it comes to big govmint and it’s privileges. Which both Thomases are happy to take advantage, When Ginnni Thomas rails against Washington elites, does it include her husband?
Questions of ethics, and appearances are one thing, however, questions of disclosure are a bit trickier. As the Times reports, Ginni Thomas accepted “large, unidentified contributions for Liberty Central” and “because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors.” And the justice who has taken the strongest stand against disclosure of campaign contributions is Clarence Thomas, who argued in his concurrence in Citizens United that the court did not go far enough, and the “disclosure, disclaimer, and reporting requirements” of the McCain-Feingold law should be deemed unconstitutional as well.
Thomas worries that disclosure leads to harassment and retaliation from angry citizens or legislators, relying on the experiences of proponents of anti gay marriage initiatives who were harassed for their beliefs. He took a similar position late last term in Doe v Reed, a case about public disclosure and Washington state’s public records act. Listening to Ginni Thomas’ certainty that there is a vicious, nameless “them” out to “demoralize,” “destroy” and “intimidate” good Americans, it’s clear this siege mentality is something they share.
Justice Thomas has made an intellectual career out of doubting insiders and embracing the angry and the outraged. Perhaps he has earned that. I don’t doubt that both Clarence and Ginni Thomas believe that there is a “hard left” that seeks to harass and destroy them and people like them. But there is no “us” vs. “them” at the Supreme Court. There’s no “masses” vs. “elites” among the nine justices. The Tea Party movement thrives and relies on the David and Goliath narrative and so does the Thomas family. But it’s not a narrative that serves the Supreme Court very well. The court doesn’t embrace the grungy masses; it fears them. That’s the reason it just sealed its front doors. Everything Ginni Thomas is agitating for, and she is very clearly agitated, counsels against the lifetime tenure her husband has both earned and enjoyed. If Ginni Thomas is serious about opposing privilege and experience and institutional wisdom and elitism she must, in all fairness, oppose the court above all.