Ginni Thomas: Unpacking potential conflicts of interest on the Supreme Court

The House select committee investigating the Jan. 6, 2021 insurrection would like to speak with Virginia “Ginni” Thomas, a conservative activist and wife of Supreme Court Justice Clarence Thomas. Committee Chairman Rep. Bennie Thompson (D-Miss.) recently announced plans to invite her to appear.

Congress wants to hear more about her bombshell texts with former President Trump’s chief of staff Mark Meadows in which she urged that something be done to thwart Joe Biden’s White House win. Her husband, a sitting justice, is now under intense pressure to recuse himself from cases relating to the 2020 election and the Jan. 6 violence, short of resignation or possibly even impeachment.

An interview with the Jan. 6 committee is vitally important, not just for what Ginni Thomas has to say about the texts, but because her testimony could reveal even deeper conflicts of interest infecting the nation’s highest court — and thus its very legitimacy writ large.

In three election-related cases, Clarence Thomas voted in a manner seemingly consistent with his wife’s far-right activism, and failed to recuse himself in contravention of a federal law mandating disqualification from any proceeding in which his impartiality may be questioned, including due to the interests of a spouse.

Most disturbingly, he was the sole dissenter in a decision requiring the National Archives to turn over to the Jan. 6 committee White House records relating to the subject matter of its inquiry. Ginni Thomas’s texts were provided voluntarily by Meadows before he stopped cooperating. It’s reported that Ginni Thomas may have communicated with others in the White House, too — if her husband’s vote reflected a desire to keep his wife’s involvement in Jan. 6 from public scrutiny, he was clearly flouting his ethical and legal obligation of actual — let alone perceived — neutrality.

In January of this year, The New Yorker’s Jane Mayer exposed a litany of potential conflicts arising from Ginni Thomas’ tightness with radical ideologues, noting even back then — before the text scandal — that “the claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept.” Ginni Thomas, a lawyer herself, runs a lobbying firm called Liberty Consulting, and is on record as declaring the “deep state” a danger to America because of “transsexual fascists” on the left.

She attended a “Stop the Steal” rally in Washington, D.C. on Jan. 6, and posted a since-removed “LOVE MAGA people!!!!” message on Facebook that went viral. She complained about Trump’s Nov. 4 loss on a private Listserv called Thomas Clerk World, which includes a number of her husband’s former Supreme Court law clerks, including attorney John Eastman.

Eastman penned the infamous memos outlining a bogus theory for justifying former Vice President Pence’s stalling of the Electoral College certification. Pence ultimately refused, and a federal judge just this week pinged Eastman as “likely” having committed three federal crimes along with his client Trump, in that connection. (The court’s opinion specifically had to do with attorney-client privilege and work product claims, and thus has no bearing on actual criminal liability, which would have to come through the Justice Department.)

Ginni Thomas also served as a director of C.N.P. Action, a dark money group that, according to Mayer, “behind closed doors, connects wealthy donors with some of the most radical right-wing figures in America.” She’s also on the advisory board of Turning Point USA, a pro-Trump student group that reportedly sent protestors to the Jan. 6 rally.

She has partnerships with right-wing groups that have other Supreme Court business, including Project Veritas, which is known for making secret videotapes of progressive public officials, and Cleta Mitchell, who was on the call in which Trump urged Georgia’s secretary of state to “find” enough votes to swing the state’s electors to him — ostensibly illegally.

Ginni Thomas was also a paid consultant to a group that filed an amicus brief with the Supreme Court in support of Trump’s Muslim travel ban, which was ultimately upheld over the dissenting votes of Justices Stephen Breyer, Elena Kagan, Sonya Sotomayor and Ruth Bader Ginsberg. And she serves on the board of a conservative group that filed an amicus brief in a Supreme Court case involving race-conscious affirmative action at Harvard. (Although during her Supreme Court confirmation hearings, Judge Ketanji Brown Jackson pledged to recuse herself from that case, due to a six-year role on the Harvard Board of Overseers, Thomas has not.)

Meanwhile, the host of hot-button issues now pending before this Court is hard to match in recent memory. They include the fate of Roe v. Wade and the constitutional right to make decisions to end a pregnancy (a right the court already effectively overruled by refusing to halt the Texas six-week abortion ban). They also include the vitality of the longstanding separation between church and state, in a case involving whether taxpayer dollars must fund religious education, as well as the question of whether states and municipalities can regulate handguns outside the home. Another question of major constitutional significance currently pending before the court is whether the Environmental Protection Agency can regulate to meaningfully slow climate change.

Each of these cases presents a possible sea change in constitutional law itself if the court reverses longstanding precedent — whether expressly or under the guise of disinterestedness. Conservative groups would presumably want the new conservative majority to upend existing law on all of these fronts. If agencies cannot constitutionally enact regulations, big business wins. If states can’t constitutionally pass laws protecting the public from gun violence, proponents of an unfettered Second Amendment right win. If states must fund right-wing religious schools if it funds non-sectarian ones, the Christian right wins. And so on.

What’s more, an unpacking of potential conflicts-of-interest on this court could mean that past cases are tainted, too. The implications of looking backward and not just forward to future Jan. 6 cases — as appears to Democrats’ primary focus when it comes to Clarence Thomas and his wife’s problematic texts — are hard to fathom.

One might argue that it’s better not to know what we don’t know, because the stakes of knowing are too high. But unfortunately, not knowing is the real problem here. If Congress doesn’t get to the bottom of things, it might soon be too late.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.” Follow her on Twitter: @kimwehle