J. Scott Applewhite / AP
Associate Justice Clarence Thomas poses as part of a group portrait at the Supreme Court building in Washington, Oct. 7, 2022.
Friday, Feb. 9, 2024 | 2 a.m.
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Briefs have been filed and reviewed, oral arguments completed and questions asked and answered. But a decision has not yet been rendered and it’s not too late for U.S. Supreme Court Justice Clarence Thomas to recuse himself from a case considering whether Donald Trump is eligible to hold public office and thus can be removed from the ballot in the state of Colorado.
The case is an appeal of a ruling by the Colorado Supreme Court which found that Trump engaged in an insurrection on Jan. 6, 2021, and is therefore ineligible to hold public office due to the insurrection clause of the 14th Amendment to the Constitution. Given his ineligibility, the Colorado court held that Trump could be removed from that state’s electoral ballot.
Given his personal, political and financial stakes in the outcome of the case and a possible future Trump presidency, Thomas’ colleagues should call for his recusal immediately and he should step aside in the case or risk permanent harm to the reputation and trust placed in the court by the American people.
As long as Thomas continues to play a role in the decision, the ethics code signed last year by the nine justices will be seen as a toothless and meaningless document that isn’t worth the paper it’s printed on.In that pledge, which was drafted in response to ethics questions regarding Justice Thomas’ and Justice Alito’s financial interests in prior cases before the court, each of the nine pledged to recuse themselves when “impartiality might be reasonably questioned” or when a justice or a spouse has a financial interest in the dispute.
That standard has clearly been met in this case and Thomas’ choice to ignore it demeans the court and undermines its credibility.
Thomas has always been a reliable conservative vote on the court, even when it required significant legal gymnastics to interpret the law in a manner consistent with GOP politics. But his personal and financial relationship to current GOP powerbrokers and his wife’s extremely active role in Trump’s “Stop the Steal” campaign raise serious questions about his ability to make an impartial decision.
Thomas’ wife, Virginia “Ginni” Thomas, is a longtime conservative activist who has received more than half a million dollars in “consulting fees” and “charitable startup costs” from billionaire Trump supporters such as Leonard Leo and Harlan Crowe. Those same donors also “gifted” the couple lavish vacations, and works of art and collectibles worth millions.
Ginni is so closely connected to Trump’s political operations that she even helped organize and lead Trump’s campaign to overturn the results of the 2020 election, attended Trump’s Jan. 6, 2021, rally at the White House and was in direct communication with White House Chief of Staff Mark Meadows in the days leading up to and during the attack on the Capitol, though she was not present at the violent attack on the U.S. Capitol.
Ginni’ Thomas’ participation in the events of Jan. 6 led to her being called as a material witness before the House select committee investigating the attack.
Any reasonable person would view those personal, political and financial ties as meaningful and worthy of recusal, and numerous officials have called for just that, including Georgia Rep. Hank Johnson, the top Democrat on the House Judiciary Committee’s courts subcommittee.
Johnson joined with seven other Democratic lawmakers to send a letter to Thomas last month that read, in part: “Fewer than half of all Americans trust the Supreme Court, and that number will fall even lower if you rule in this case. … To protect the court’s integrity and the legitimacy of its decision in this monumental case, you must recuse yourself.”
Sen. Dick Durbin, D-Ill., echoed those calls this week, posting on social media that, “Given questions surrounding his wife’s involvement, Justice Thomas should recuse himself so there’s no question of bias.”
Despite the calls, Justice Thomas was a full participant in this week’s oral arguments and even asked the first question of the hearing.
Fortunately, it’s not too late.
His participation in oral arguments was inappropriate but it was also fully transparent and visible to the public and the other eight justices. Regardless of Thomas’ personal motives, biases or beliefs, the questions he asked during the hearing cannot unilaterally determine the outcome of the case.
The same cannot be said of Thomas’ ability to vote in the final decision.
Thomas personally controls one of the five votes needed to create a majority ruling. His personal, political and financial interests in the outcome of the case raise significant concerns that his vote could be motivated by those interests, rather than by the facts of the case or his understanding of the law. This is a prime opportunity for one of the two most compromised justices on the court, Alito being the other, to pay back his billionaire benefactors for the vast amount of luxury and benefits they’ve rained down on Thomas and his wife.
The only way to avoid the continued erosion of trust in the court is for Thomas to accept that his opportunity to participate in the case and present legal arguments regarding its outcome are now concluded. He should recuse himself from voting and refuse the opportunity to author or join an opinion in the case. Anything less is a clear indication of knowing and intentional corruption, and the final nail in the coffin of the court’s reputation for ethical and independent jurisprudence.
