Clarence Thomas has long been a controversial figure since his public emergence. When Anita Hill accused Thomas of sexual harassment during his confirmation hearings in 1991 all the way up to his recent judicial rulings, the Thomas name has lived in infamy, to say the least. His strict originalist interpretation of the Constitution has largely served to benefit conservative politicians, raising objections regarding his adherence to judicial code of conduct—particularly considering his wife’s rampant conservative activism. In the light of the January 6th capitol insurrection and consequent litigation involving Thomas, his rulings regarding past & present contested elections take on a new context.

Contested Election, Contested Decision

One of Thomas’ initial controversies, the Bush v. Gore decision set a landmark precedent regarding the court’s role in mediating the contested election. The election between George W. Bush and Al Gore came down to a close vote as the media was divided on who would win. The results were thrown into contestation when news of Florida’s ballot results narrowed the margin of victory for Gore. As a result, the votes were recounted under state law and continued to be contested as suspect due to the varying means of how the recount was conducted (by hand, machine, etc) and how voter intent was discerned. In addition, there were sources of potential conflicts of interest for both Gore and Bush; Jeb Bush, Bush’s brother, was the governor of Florida and Katherine Harris was a Bush campaigner and Florida’s Secretary of State while Gore campaign head Bob Butterworth was Florida’s attorney general. When brought to the Florida Supreme Court by Gore, they decided to allow manual recounts of votes in select Florida counties. The Bush campaign objected to this decision and took the case to the Federal Supreme Court who ruled that Florida court’s decision violated the equal protection clause in the Fourteenth Amendment (7-2) and that votes were no longer allowed to be recounted (5-4).

Thomas faced criticism, along with his other majority peers, against his definitive decision against the Florida courts. Among the dominating critiques of legislative misinterpretation by dissenting opinions laid a subtler, potentially less pervasive critique: conflict of interest. Thomas’ wife, Virginia (Ginni) L. Thomas was a member of the staunchly conservative Heritage Foundation that worked to aid the (incoming) Bush administration. In the Heritage Foundation, she worked to vet potential staff and cabinet appointments. Before the trial began, Thomas had been called to recuse himself due to his wife’s close ties to the Republican Party, specifically Bush, claiming a violation of 28 U.S. Code § 455. A section of the code reads as such:

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

Thomas, obviously, did not recuse himself; at the time, the accusation had enough plausible deniability to not be considered a legitimate concern, despite Ginni Thomas’ position as the Director of Executive Branch Relations in the Heritage Foundation and the foundation’s connection to Bush.

My Wife is an Insurrectionist?

While the Bush admin connections were shaky, Ginni Thomas’ connection to the January 6th capitol riot was not. Upon learning of Joe Biden’s election win, she sent a string of messages to Mark Meadows, Donald Trump’s Chief of Staff, urging him to stop the steal, one of which being:

“Help This Great President stand firm, Mark!!!…You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”

The texts clearly indicate her engagement in stolen election conspiracy and her desire to incite some type of restorative action in response. She claimed the text correspondence was the result of an emotional reaction post-election and that her presence at the capitol on January 6th ended before the riots when pressed by the January 6th election committee. Regardless of her “intent,” its hard to claim her actions don’t violate the 28 U.S. Code § 455 with her connection to Trump’s staffers. Her insurrectionary actions make Thomas’ non-recusal all the more incriminating in the Trump v. United States presidential immunity decision and aids in the public’s increasing Supreme Court distrust. Moreover, Trump’s appointment of three originalist justices to the Supreme Court, all with similar controversies, continue to question the legitimacy of the court when ideological diversity is slowly dissipated and allegiance to Trump is given precedence—if the majority conservative judges act as a faction, who will hold the others accountable?

 

Sources

CBS San Francisco (December 30, 2022): Ginni Thomas tells Jan.6 committee she regrets texting with Meadows about 2020 election

Claudia Grisales (September 30, 2022): Supreme Court Justice Thomas’ wife Ginni has a long history of conservative activism

Bob Woodward and Robert Costa (March 24, 2022): Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show

E.J Dionne and William Kristol (pp. 97-143, 2001): Bush v. Gore: The Court Cases and the Commentary