It is likely involved with conflicts of interest. She just getting money for
doing what she believes [sic] in. Of course, it would be difficult for
Clarence Thomas to recuse himself from all of the cases she is related to. Eric
A Reporter at Large<https://www.newyorker.com/magazine/a-reporter-at-large>
January 31, 2022 Issue<https://www.newyorker.com/magazine/2022/01/31>
Is Ginni Thomas a Threat to the Supreme Court?
Behind closed doors, Justice Clarence Thomas’s wife is working with many groups
directly involved in controversial cases before the Court.
By Jane Mayer<https://www.newyorker.com/contributors/jane-mayer>
January 21, 2022 [sic] in.
Ginni Thomas has declared that America is in existential danger because of the
“deep state” and the “fascist left,” which includes “transsexual
fascists.”Illustration by Chloe Cushman
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Listen to this story
In December, Chief Justice John Roberts released his year-end report on the
federal judiciary. According to a recent Gallup
poll<https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx>,
the Supreme Court has its lowest public-approval rating in history—in part
because it is viewed as being overly politicized. President Joe Biden recently
established a bipartisan commission to consider reforms to the Court, and
members of Congress have introduced legislation that would require Justices to
adhere to the same types of ethics standards as other judges. Roberts’s report,
however, defiantly warned everyone to back off. “The Judiciary’s power to
manage its internal affairs insulates courts from inappropriate political
influence,” he
wrote<https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf>.
His statement followed a series of defensive speeches from members of the
Court’s conservative wing, which now holds a super-majority of 6–3. Last fall,
Justice Clarence Thomas, in an address at Notre Dame, accused the media of
spreading the false notion that the Justices are merely politicians in robes.
Such criticism, he said, “makes it sound as though you are just always going
right to your personal preference,” adding, “They think you become like a
politician!”
The claim that the Justices’ opinions are politically neutral is becoming
increasingly hard to accept, especially from Thomas, whose wife, Virginia
(Ginni) Thomas, is a vocal right-wing activist. She has declared that America
is in existential danger because of the “deep state” and the “fascist left,”
which includes “transsexual fascists.” Thomas, a lawyer who runs a small
political-lobbying firm, Liberty Consulting, has become a prominent member of
various hard-line groups. Her political activism has caused controversy for
years. For the most part, it has been dismissed as the harmless action of an
independent spouse. But now the Court appears likely to secure victories for
her allies in a number of highly polarizing cases—on abortion, affirmative
action, and gun rights.
Many Americans first became aware of Ginni Thomas’s activism on January 6,
2021. That morning, before the Stop the Steal rally in Washington, D.C., turned
into an assault on the
Capitol<https://www.newyorker.com/magazine/2021/01/25/among-the-insurrectionists>
resulting in the deaths of at least five people, she cheered on the supporters
of President Donald Trump<https://www.newyorker.com/tag/donald-trump> who had
gathered to overturn Biden’s
election<https://www.newyorker.com/magazine/2020/11/16/the-biden-era-begins>.
In a Facebook post that went viral, she linked to a news item about the
protest, writing, “love maga people!!!!” Shortly afterward, she posted about
Ronald Reagan’s famous “A Time for Choosing” speech. Her next status update
said, “god bless each of you standing up or praying.” Two days after the
insurrection, she added a
disclaimer<https://slate.com/news-and-politics/2021/01/ginni-thomas-donald-trump-clarence-thomas-capitol-riot.html>
to her feed, noting that she’d written the posts “before violence in US
Capitol.” (The posts are no longer public.)
Later that January, the Washington Post
revealed<https://washingtonpost.com/politics/courts_law/ginni-thomas-apology-clarence-thomas-clerks-trump-rally/2021/02/02/a9818cce-6496-11eb-8c64-9595888caa15_story.html?tid=pm_pop>
that she had also been agitating about Trump’s loss on a private Listserv,
Thomas Clerk World, which includes former law clerks of Justice Thomas’s. The
online discussion had been contentious. John Eastman, a former Thomas clerk and
a key
instigator<https://theconstitutionalist.org/2021/10/13/john-eastmans-big-lie/>
of the lie that Trump actually won in
2020<https://www.newyorker.com/magazine/2021/08/09/the-big-money-behind-the-big-lie>,
was on the same side as Ginni Thomas, and he drew rebukes. According to the
Post, Thomas eventually apologized to the group for causing internal rancor.
Artemus Ward, a political scientist at Northern Illinois University and a
co-author of “Sorcerers’
Apprentices<https://www.amazon.com/dp/0814794203?ots=1&tag=thneyo0f-20&linkCode=w50>,”
a history of Supreme Court clerks, believes that the incident confirmed her
outsized role. “Virginia Thomas has direct access to Thomas’s clerks,” Ward
said. Clarence Thomas is now the Court’s senior member, having served for
thirty years, and Ward estimates that there are “something like a hundred and
twenty people on that Listserv.” In Ward’s view, they comprise “an élite
right-wing commando movement.” Justice Thomas, he says, doesn’t post on the
Listserv, but his wife “is advocating for things directly.” Ward added, “It’s
unprecedented. I have never seen a Justice’s wife as involved.”
Clarence and Ginni Thomas declined to be interviewed for this article. In
recent years, Justice Thomas, long one of the Court’s most reticent members,
has been speaking up more in oral arguments. His wife, meanwhile, has become
less publicly visible, but she has remained busy, aligning herself with many
activists who have brought issues in front of the Court. She has been one of
the directors of C.N.P. Action, a dark-money wing of the conservative pressure
group the Council for National Policy. C.N.P. Action, behind closed doors,
connects wealthy donors with some of the most radical right-wing figures in
America. Ginni Thomas has also been on the advisory board of Turning Point
USA<https://www.newyorker.com/news/news-desk/a-conservative-nonprofit-that-seeks-to-transform-college-campuses-faces-allegations-of-racial-bias-and-illegal-campaign-activity>,
a pro-Trump student group, whose founder, Charlie Kirk, boasted of sending
busloads of protesters to Washington on January 6th.
Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist,
told me, “I think Ginni Thomas is behaving horribly, and she’s hurt the Supreme
Court and the administration of justice. It’s reprehensible. If you could take
a secret poll of the other eight Justices, I have no doubt that they are
appalled by Virginia Thomas’s behavior. But what can they do?” Gillers thinks
that the Supreme Court should be bound by a code of conduct, just as all
lower-court judges in the federal system are. That code requires a judge to
recuse himself from hearing any case in which personal entanglements could lead
a fair-minded member of the public to question his impartiality. Gillers
stressed that “it’s an appearance test,” adding, “It doesn’t require an actual
conflict. The reason we use an appearance test is because we say the appearance
of justice is as important as the fact of justice itself.”
The Constitution offers only one remedy for misconduct on the Supreme Court:
impeachment. This was attempted
once<https://www.senate.gov/about/powers-procedures/impeachment/impeachment-chase.htm#:~:text=Samuel%20Chase%20had%20served%20on%20the%20Supreme%20Court%20since%201796.&text=The%20House%20voted%20to%20impeach,in%20two%20politically%20sensitive%20cases.>,
in 1804, but it resulted in an acquittal, underscoring the independence of the
judicial branch. Since then, only one Justice, Abe Fortas, has been forced to
step down; he resigned in 1969, after members of Congress threatened to impeach
him over alleged financial conflicts of interest. Another Justice, William O.
Douglas, an environmental activist, pushed the limits of propriety by serving
on the board of the Sierra Club. In 1962, he resigned from the board,
acknowledging that there was a chance the group would engage in litigation that
could reach the Court. The historian Douglas Brinkley, who is writing a book
about the environmental movement, told me, “I think Bobby and Jack Kennedy told
Douglas to cool his jets.”
In recent years, Democrats have been trying to impose stronger ethics standards
on the Justices—a response, in part, to what Justice Sonia Sotomayor has
described as the “stench” of
partisanship<https://www.newyorker.com/magazine/2021/12/13/the-mississippi-abortion-case-and-the-fragile-legitimacy-of-the-supreme-court>
on the Court. In 2016, Republicans in Congress, in an unprecedented act,
refused to let President Barack Obama fill a vacancy on the Court. Trump
subsequently pushed through the appointment of three hard-line conservative
Justices. Last summer, Democrats in Congress introduced a bill that would
require the Judicial Conference of the United States to create a binding code
of conduct for members of the Supreme Court. They also proposed
legislation<https://www.whitehouse.senate.gov/news/release/amicus-act-introduced-to-ensure-transparency-in-judicial-lobbying>
that would require more disclosures about the financial backers behind amicus
briefs—arguments submitted by “friends of the court” who are supporting one
side in a case.
[Two people sitting at a kitchen table holding coffee
cups.]<https://www.newyorker.com/cartoon/a26140>“Until I’ve had my coffee, I’m
only capable of talking about coffee.”
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* <https://condenaststore.com/conde-nast-brand/cartoons>
Cartoon by Amy Hwang
So far, these proposals haven’t gone anywhere, but Gillers notes that there are
extant laws circumscribing the ethical behavior of all federal judges,
including the Justices. Arguably, Clarence Thomas has edged unusually close to
testing them. All judges, even those on the Court, are required to recuse
themselves from any case in which their spouse is “a party to the proceeding”
or is “an officer, director, or trustee” of an organization that is a party to
a case. Ginni Thomas has not been a named party in any case on the Court’s
docket; nor is she litigating in any such case. But she has held leadership
positions at conservative pressure groups that have either been involved in
cases before the Court or have had members engaged in such cases. In 2019, she
announced a political project called Crowdsourcers, and said that one of her
four partners would be the founder of Project Veritas, James O’Keefe. Project
Veritas tries to embarrass progressives by making secret videos of them, and
last year petitioned the Court to enjoin Massachusetts from enforcing a state
law that bans the surreptitious taping of public officials. Another partner in
Crowdsourcers, Ginni Thomas said in her announcement, was Cleta Mitchell, the
chairman of the Public Interest Legal Foundation, a conservative election-law
nonprofit. It, too, has had business before the Court, filing amicus briefs in
cases centering on the democratic process. Thomas also currently serves on the
advisory board of the National Association of Scholars, a group promoting
conservative values in academia, which has filed an amicus
brief<https://www.nas.org/blogs/press_release/scholars_file_amicus_brief_in_students_for_fair_admissions_v_harvard_colleg>
before the Court in a potentially groundbreaking affirmative-action
lawsuit<https://www.newyorker.com/magazine/2021/08/02/can-affirmative-action-survive>
against Harvard. And, though nobody knew it at the time, Ginni Thomas was an
undisclosed paid consultant at the conservative pressure group the Center for
Security Policy, when its founder, Frank Gaffney, submitted an amicus brief to
the Court supporting Trump’s Muslim travel ban.
Bruce Green, a professor at Fordham specializing in legal ethics, notes, “In
the twenty-first century, there’s a feeling that spouses are not joined at the
hip.” He concedes, though, that “the appearance” created by Ginni Thomas’s
political pursuits “is awful—they look like a mom-and-pop political-hack group,
where she does the political stuff and he does the judging.” It’s hard to
imagine, he told me, that the couple doesn’t discuss Court cases: “She’s got
the ear of a Justice, and surely they talk about their work.” But, from the
technical standpoint of judicial ethics, “she’s slightly removed from all these
cases—she’s not actually the legal director.” Green feels that the conflict of
interest is “close, but not close enough” to require that Thomas recuse himself.
VIDEO FROM THE NEW YORKER
<https://www.newyorker.com/video/watch/shorts-murmurs-a-fathers-newfound-feminism>
A Father’s Newfound Feminism
David Luban, a professor of law and philosophy at Georgetown, who specializes
in legal ethics, is more concerned. He told me, “If Ginni Thomas is intimately
involved—financially or ideologically tied to the litigant—that strikes me as
slicing the baloney a little thin.”
When Clarence Thomas met Ginni Lamp, in 1986, he was an ambitious Black
conservative in charge of the U.S. Equal Employment Opportunity Commission—and
she was even more conservative and better connected than he was. Her father ran
a firm that developed housing in and around Omaha, and her parents were Party
activists who had formed the backbone of Barry Goldwater’s campaign in
Nebraska. The writer Kurt Andersen, who grew up across the street from the
family, recalls, “Her parents were the roots of the modern, crazy Republican
Party. My parents were Goldwater Republicans, but even they thought the Lamp
family was nuts.” Ginni graduated from Creighton University, in Omaha, and then
attended law school there. Her parents helped get her a job with a local
Republican candidate for Congress, and when he won she followed him to
Washington. But, after reportedly flunking the bar exam, she fell in with a
cultish self-help group, Lifespring, whose members were encouraged to strip
naked and mock one another’s body fat. She eventually broke away, and began
working for the Chamber of Commerce, opposing “comparable worth” pay for women.
She and Thomas began dating, and in 1987 they married. As a woman clashing with
the women’s movement, she had found much in common with Thomas, who opposed
causes supported by many Black Americans. At Thomas’s extraordinarily
contentious Supreme Court confirmation hearings, in 1991, Anita Hill credibly
accused him of having sexually harassed her when she was working at the
E.E.O.C. Ginni Thomas later likened the experience to being stuck inside a
scalding furnace. Even before then, a friend told the Washington
Post<https://www.washingtonpost.com/archive/lifestyle/1991/09/10/the-nomineess-soul-mate/3e0a9aa9-fdee-41f3-b5be-a6af468d89cc/>,
the couple was so bonded that “the one person [Clarence] really listens to is
Virginia.”
Ginni Thomas had wanted to run for Congress, but once her husband was on the
Supreme Court she reportedly felt professionally stuck. She moved through
various jobs, including one at the Heritage Foundation, the conservative think
tank. In 2010, she launched her lobbying firm, Liberty Consulting. Her Web site
quotes a client saying that she is able to “give access to any door in
Washington.”
Four years ago, Ginni Thomas inaugurated the Impact Awards—an annual ceremony
to honor “courageous cultural warriors” battling the “radical ideologues on the
left” who use “manipulation, mobs and deceit for their ends.” She presented the
awards at luncheons paid for by United in Purpose, a nonprofit that mobilizes
conservative evangelical voters. Many of the recipients have served on boards
or committees with Ginni Thomas, and quite a few have had business in front of
the Supreme Court, either filing amicus briefs or submitting petitions asking
that the Justices hear cases. At the 2019 event, Ginni Thomas praised one of
that year’s recipients, Abby Johnson, a former Planned Parenthood employee who
became an anti-abortion activist, for her “riveting indictment of Planned
Parenthood’s propagation of lies.” That year, Thomas also gave a prize to Mark
Meadows, then a hard-line Republican in Congress, describing him as the leader
“in the House right now that we were waiting for.” Meadows, in accepting the
award, said, “Ginni was talking about how we ‘team up,’ and we actually have
teamed up. And I’m going to give you something you won’t hear anywhere else—we
worked through the first five days of the impeachment hearings.”
Thomas’s decision to bestow prizes on Johnson and Meadows underscores the
complicated overlaps between her work and her husband’s. In 2020, Johnson, a
year after receiving an Impact Award, filed with the Court an amicus brief
supporting restrictions on abortion in Louisiana. Last year, Johnson
participated in the January 6th protests, and the insurrection has since become
the object of much litigation, some of which will likely end up before the
Court. Last month, she went on Fox
News<https://www.foxnews.com/media/former-planned-parenthood-director-supreme-court-liberals-abortion-hearing>
and said that “a couple of the liberal Justices”—she singled out Justice
Sotomayor by name—had been “idiotic” during oral
arguments<https://www.newyorker.com/magazine/2021/12/13/the-mississippi-abortion-case-and-the-fragile-legitimacy-of-the-supreme-court>
in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case
now under consideration by the Supreme Court. (Johnson didn’t respond to
requests for comment.)
Soon after Ginni Thomas gave Mark Meadows an Impact Award, he became Trump’s
chief of staff. This past December, he refused to
comply<https://www.newyorker.com/magazine/2021/12/27/mark-meadows-and-the-republican-response-to-the-january-6th-investigation>
with a subpoena from the House select committee that is investigating the
Capitol attack. Cleta Mitchell, who advised Trump on how to contest Biden’s
electoral victory, received an Impact Award in 2018. She has moved to block a
committee subpoena of her phone records. The House of Representatives recently
voted to send the Justice Department a referral recommending that it charge
Meadows with criminal contempt of Congress. The same thing may well happen to
Mitchell. It seems increasingly likely that some of Ginni Thomas’s Impact Award
recipients will end up as parties before the Supreme Court.
The Justice Department has so far charged more than seven hundred people in
connection with the insurrection, and Attorney General Merrick Garland has said
that the federal government will prosecute people “at any level” who may have
instigated the riots—perhaps even Trump. On January 19th, the Supreme Court
rejected the former President’s request that it intervene to stop the
congressional committee from accessing his records. Justice Thomas was the lone
Justice to dissent. (Meadows had filed an amicus brief in support of Trump.)
Ginni Thomas, meanwhile, has denounced the very legitimacy of the congressional
committee. On December 15th, she and sixty-two other prominent conservatives
signed an open letter to Kevin McCarthy, the House Minority Leader, demanding
that the House Republican Conference excommunicate Representatives Liz Cheney
and Adam Kinzinger for their “egregious” willingness to serve on the committee.
The statement was issued by an advocacy group called the Conservative Action
Project, of which Ginni Thomas has described herself as an “active” member. The
group’s statement excoriated the congressional investigation as a “partisan
political persecution” of “private citizens who have done nothing wrong,” and
accused the committee of serving “improperly issued subpoenas.”
ADVERTISEMENT
A current member of the Conservative Action Project told me that Ginni Thomas
is part of the group not because of her qualifications but “because she’s
married to Clarence.” The member asked to have his name withheld because, he
said, Ginni is “volatile” and becomes “edgy” when challenged. He added, “The
best word to describe her is ‘tribal.’ You’re either part of her group or
you’re the enemy.”
Ginni Thomas has her own links to the January 6th insurrection. Her Web site,
which touts her consulting acumen, features a glowing testimonial from Kimberly
Fletcher<https://web.archive.org/web/20220111033503/http://www.ginnithomas.org/>,
the president of a group called Moms for America: “Ginni’s ability to make
connections and communicate with folks on the ground as well as on Capitol Hill
is most impressive.” Fletcher spoke at two protests in Washington on January 5,
2021, promoting the falsehood that the 2020 election was fraudulent. At the
first, which she planned, Fletcher praised the previous speaker, Representative
Mary Miller, a freshman Republican from Illinois, saying, “Amen!” Other people
who heard Miller’s speech called for her resignation: she’d declared, “Hitler
was right on one thing—he said, ‘Whoever has the youth has the future.’ ” At
the second protest, not far from the Trump International Hotel, Fletcher
declared that, when her children and grandchildren one day asked her, “Where
were you when the Republic was on the verge of collapse?,” she would answer, “I
was right here, fighting to my last breath to save it!”
Vivian Brown, who returned a call to Moms for America, said that she would not
discuss Fletcher’s testimonial for Ginni Thomas or clarify whether Fletcher had
been Thomas’s business client. But the record suggests that the two have been
political associates for more than a decade. A program from Liberty xpo &
Symposium, a 2010 convention that has been
described<https://www.motherjones.com/politics/2010/09/tea-party-liberty-xpo-fail/>
as the “largest conservative training event in history,” indicates that
Fletcher and Thomas co-hosted a Remember the Ladies Banquet. A list of other
speakers at the symposium includes Stewart Rhodes, the founder of the Oath
Keepers<https://www.newyorker.com/news/american-chronicles/the-secret-source-who-helped-fuel-trumps-big-lie>,
an extremist militia group. Rhodes was arrested earlier this month and
charged, along with ten associates, with seditious conspiracy for allegedly
plotting to halt the congressional certification of Biden’s electoral win by
storming the Capitol. (Rhodes has pleaded not guilty.)
Another organizer of the January 6th uprising who has been
subpoenaed<https://january6th.house.gov/sites/democrats.january6th.house.gov/files/20211007%20Alexander%20Final.pdf>
by the congressional committee, Ali Alexander, also has long-standing ties to
Ginni Thomas. Like Fletcher, Alexander spoke at a rally in Washington the night
before the riot, leading a chant of “Victory or death!” A decade ago, Alexander
was a participant in Groundswell, a secretive, invitation-only network that,
among other things, coördinated with hard-right congressional aides,
journalists, and pressure groups to launch attacks against Obama and against
less conservative Republicans. As recently as 2019, Ginni Thomas described
herself as the chairman of Groundswell, which, according to documents first
published by Mother
Jones<https://www.motherjones.com/politics/2013/07/groundswell-rightwing-group-ginni-thomas/>,
sees itself as waging “a 30 front war seeking to fundamentally transform the
nation.” As Karoli Kuns, of the media watchdog Crooks and Liars, has noted,
several Groundswell members—including Steve
Bannon<https://www.newyorker.com/news/daily-comment/how-big-a-threat-is-steve-bannon>
and Sebastian Gorka, the fringe foreign-policy analyst—went on to form the
far-right flank of the Trump Administration. (Both Bannon and Gorka were
eventually pushed out.) According to Ginni Thomas’s biography in the Council
for National Policy’s membership book, she remains active in Groundswell. A
former participant told me that Thomas chairs weekly meetings.
Norman Eisen, a senior fellow at the Brookings Institution who, between 2009
and 2011, served as the special counsel and special assistant to the President
for ethics and government reform, told me that “it is hard to understand how
Justice Thomas can be impartial when hearing cases related to the upheaval on
January 6th, in light of his wife’s documented affiliation with January 6th
instigators and Stop the Steal organizers.” He argues that “Justice Thomas
should recuse himself, given his wife’s interests in the outcome of these
cases.”
Gillers, of N.Y.U., and other legal scholars say that there is little chance of
such a recusal. Justice Thomas has recused himself at least once before, from a
1996 case involving a military academy that his son was attending. But, as
Eisen observed, though Ginni Thomas’s activism has attracted criticism for
years, Clarence Thomas has never acknowledged it as a conflict of interest.
Recusals on the Supreme Court are extremely rare, in part because substitutes
are not permitted, as they are for judges on lower courts. Yet several other
Justices have stepped aside from cases to avoid even the appearance of
misconduct. Justice Stephen Breyer recuses himself from any case that has been
heard by his brother, Charles Breyer, a federal judge in the Northern District
of California. “It’s about the appearance of impropriety,” Charles Breyer told
me. “Laypeople would think you would favor your brother over the merits of the
case. It’s [done] to make people believe that the Supreme Court is not
influenced by relationships.” Justice Breyer also recused himself from a case
involving the Dana-Farber Cancer Institute, because his wife had previously
worked there.
Charles Breyer told me that, although Justices sometimes “might have a right
not to recuse, that doesn’t change the question, which is: How does that affect
the appearance of impropriety?” When I asked him whether the Justices confront
one another about potential conflicts of interest, he said, “My guess is that
they don’t discuss it. They leave it entirely up to the independent judgment.
They wouldn’t dare suggest recusal—it’s part of the way they get along with one
another.”
[A man with a mustache lays in bed while a child reads a book to
him.]<https://www.newyorker.com/cartoon/a26068>“Once upon a time, there was a
middle-aged man who left his job in corporate accounting to focus on his
writing .?.?.”
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* <https://condenaststore.com/conde-nast-brand/cartoons>
Cartoon by Lars Kenseth
In 2021, Justice Brett Kavanaugh recused himself, without explanation, from a
case apparently related to a family member. According to Gabe Roth, the
executive director of Fix the Court, a nonprofit advocating for reforms to the
federal judiciary, an amicus brief had been filed by a cosmetics trade
association that Kavanaugh’s father used to run.
The spouses of other Justices have taken steps to avoid creating conflicts of
interest in the first place. When Ruth Bader Ginsburg joined the U.S. Court of
Appeals for the District of Columbia Circuit, her husband, Martin Ginsburg—then
one of the country’s most successful tax lawyers—left his law firm and turned
to teaching. After John Roberts was nominated to be a Justice, his wife, Jane
Sullivan Roberts, retired from practicing law and resigned from a leadership
role in Feminists for Life, an anti-abortion group.
In 2004, Justice Antonin Scalia famously defended his decision to continue
presiding over a case that involved former Vice-President Dick Cheney after it
was revealed that the two men had gone duck hunting together while the case was
in the Court’s docket. Scalia argued, in essence, that Washington is a small
town where important people tend to socialize. But in 2003 Scalia recused
himself<https://www.nytimes.com/2003/10/15/us/supreme-court-to-consider-case-on-under-god-in-pledge-to-flag.html>
in a case addressing whether the mention of God in the Pledge of Allegiance
violated the Constitution’s separation of church and state—because, several
months before oral arguments began, he’d given a speech belittling the
litigant’s arguments.
Ginni Thomas has complained that she and her husband have received more
criticism than have two well-known liberal jurists with politically active
spouses: Marjorie O. Rendell continued to serve on the appeals court in
Pennsylvania while her husband at the time, Ed Rendell, served as the state’s
governor; Stephen Reinhardt, an appeals-court judge in California, declined to
recuse himself from cases in which the American Civil Liberties Union was
involved, even though his wife, Ramona Ripston, led a branch of the group in
Southern California.
Ethics standards may be changing, however. Cornelia T. L. Pillard, a judge on
the U.S. Court of Appeals for the D.C. Circuit, currently handles a spousal
conflict of interest more rigorously. She is married to David Cole, the
national legal director for the A.C.L.U., and recuses herself from any case in
which the A.C.L.U. has been involved, whether at a national or local level—and
regardless of whether her husband worked on the case.
ADVERTISEMENT
Roth, of Fix the Court, told me that there is an evident need “for a clearer
and more exacting recusal standard at the Supreme Court—especially now, as it’s
constantly being thrust into partisan battles, and as the public’s faith in its
impartiality is waning.”
Traditionally, judges have not been particularly fastidious about potential
conflicts of interest connected to amicus briefs. But that standard may be
changing, too. As the number of partisan political issues facing the judicial
branch has grown, so has the number of these briefs. Many of them are being
filed by opaquely funded dark-money groups, whose true financial sponsors are
concealed, thus enabling invisible thumbs to press on the scales of justice.
Paul Collins, a political scientist at the University of Massachusetts at
Amherst, who has studied the use of amicus briefs, told me, “There’s been an
almost linear increase in the number of them since the World War Two era. Now
it’s the rare case that doesn’t have one.” The reason, he said, is that, “more
and more, the courts are seen as a venue for social change.” He explained that
political groups, many with secret donors, are “using the courts the way they
used to use Congress—basically, amicus briefs are a means of lobbying.”
The problem has become so widespread that in 2018 the rules for appellate-court
judges were amended to make it possible for judges to strike any amicus brief
that might force them to recuse themselves. There has been no such reckoning at
the Supreme Court—not even when close political associates of Ginni Thomas’s
have filed amicus briefs. One such associate is Frank Gaffney, a defense hawk
best known for having made feverish claims suggesting that Obama is a Muslim
and that Saddam Hussein’s regime was involved in the Oklahoma City bombings.
Leaked documents show that Gaffney was a colleague of Ginni Thomas’s at
Groundswell as far back as 2013. Gaffney was a proponent of Trump’s reactionary
immigration policies, including, most vociferously, of the Administration’s
Muslim travel ban. As these restrictions were hit by lawsuits, Gaffney’s
nonprofit, the Center for Security Policy, signed the first of two big
contracts with Liberty Consulting. According to documents that Gaffney’s group
filed with the I.R.S., in 2017 and 2018 it paid Ginni Thomas a total of more
than two hundred thousand dollars.
It’s not entirely clear where Gaffney’s nonprofit got the funds to hire Liberty
Consulting. (Gaffney didn’t respond to interview requests.) But, according to
David Armiak—the research director at the Center for Media and Democracy, which
tracks nonprofit political spending—one of the biggest donors to Gaffney’s
group in 2017 was a pro-Trump political organization, Making America Great,
whose chairman, the heiress Rebekah Mercer, was among Trump’s biggest backers.
While two hundred thousand dollars was being passed from Trump backers to
Gaffney to Ginni Thomas, the Supreme Court agreed to hear legal challenges to
Trump’s travel restrictions. In August, 2017, Gaffney and six other advocates
submitted an amicus
brief<https://www.americanfreedomlawcenter.org/wp-content/uploads/2017/08/16-1436-1540-National-Security-Experts-Brief-Final.pdf>
to the Court in support of the restrictions, arguing that “the challenge of
Islam must be confronted.”
That December, as the case was still playing out, Ginni Thomas bestowed one of
her Impact Awards on Gaffney, introducing him “as an encourager to me and a
great friend” but giving no hint that his group was paying her firm. The Impact
ceremony was held at the Trump International Hotel, and, according to another
guest, Jerry Johnson, Justice Thomas was in attendance. Johnson later recalled
that the Justice sat in front of him and was a “happy warrior,” pleased to be
watching his wife “running the meeting.” Throughout the 2017 and 2018 sessions,
as various challenges to the travel restrictions were considered by the Court,
Justice Thomas consistently took a hard pro-Trump line. Finally, in June, 2018,
Thomas and four other Justices narrowly upheld the final version of the
restrictions.
It’s impossible to know whether Thomas was influenced by his wife’s lucrative
contract with Gaffney, by Gaffney’s amicus brief, or by her celebration of
Gaffney at the awards ceremony. Given the Justice’s voting history, it’s
reasonable to surmise that he would have supported the travel restrictions no
matter what. Nevertheless, the lawyers on the losing side of the case surely
would have wanted to know about Ginni Thomas’s financial contract with Gaffney.
Judges, in their annual financial disclosures, are required to report the
source of their spouses’ incomes. But Justice Thomas, in his disclosures in
2017 and 2018, failed to mention the payments from Gaffney’s group. Instead, he
put down a curiously low book value for his wife’s lobbying firm, claiming in
both years that her company was worth only between fifteen and fifty thousand
dollars.
Roth, of Fix the Court, told me that, at the very least, Justice Thomas should
be asked to amend his financial statements from those years—as he did in 2011,
after it became public that he hadn’t disclosed the six hundred and eighty-six
thousand dollars that his wife had earned at the Heritage Foundation between
2003 and 2007. Beyond that, Roth said, “the Justices should, as a rule,
disqualify themselves from cases in which a family member or the family
member’s employer has filed an amicus brief.” In Congress, the Democratic
senator Sheldon Whitehouse, of Rhode Island, is pushing for reform. Amicus
briefs, he told me, are “a form of lobbying that has two terrible aspects—the
interests behind them are hidden, and they are astonishingly effective in terms
of the win rate.” He added, “They open up real avenues for secret mischief.”
In January, 2019, Ginni Thomas secured for Gaffney the access that her Web site
promises. As Maggie Haberman, of the
Times<https://www.nytimes.com/2019/01/26/us/politics/trump-ginni-thomas-meeting.html>,
and Jonathan Swan, of
Axios<https://www.axios.com/trump-memos-deep-state-white-house-ce5be95f-2418-433d-b036-2bf41c9700c3.html>,
have reported, not long after Clarence and Ginni Thomas had a private dinner
at the White House with Donald and Melania Trump, the President’s staff gave in
to a months-long campaign by Ginni to bring her, Gaffney, and several other
associates to the White House to press the President on policy and personnel
issues. The White House was not informed that Gaffney’s group had been paying
Liberty Consulting for the previous two years. (Gaffney’s group did not report
signing a contract with Liberty Consulting for 2019.)
The White House meeting was held in the Roosevelt Room, and by all accounts it
was uncomfortable. Thomas opened by saying that she didn’t trust everyone in
the room, then pressed Trump to purge his Administration of disloyal members of
the “deep state,” handing him an enemies list that she and Groundswell had
compiled. Some of the participants prayed, warning that gay
marriage<https://www.newyorker.com/news/amy-davidson/supreme-court-same-sex-marriage-kennedy>,
which the Supreme Court legalized in 2015, was undermining morals in America.
One participant told me he’d heard that Trump had wanted to humor Ginni Thomas
because he was hoping to talk her husband into retiring, thus opening up
another Court seat. Trump, given his manifold legal problems, also saw Justice
Thomas as a potentially important ally—and genuinely liked him. But the
participant told me that the President considered Ginni Thomas “a wacko,”
adding, “She never would have been there if not for Clarence. She had access
because her last name was Thomas.”
Ginni Thomas rarely speaks to mainstream reporters, but she often gives
speeches in private forums. The Web site of the watchdog
Documented<https://documented.net/investigations/council-for-national-policy-recordings>
has posted a video of her speaking with striking candor. In October, 2018, she
led a panel discussion during a confidential session of the Council for
National Policy. At the time, the Senate was caught up in the fight over the
confirmation of Brett Kavanaugh, who had been accused of sexual
assault<https://www.newyorker.com/news/news-desk/a-sexual-misconduct-allegation-against-the-supreme-court-nominee-brett-kavanaugh-stirs-tension-among-democrats-in-congress>.
“I’m feeling the pain—Clarence is feeling the pain—of going through false
charges against a good man,” she said. “I thought it couldn’t get worse than
Clarence’s, but it did.” America, she said, “is in a vicious battle for its
founding principles,” adding, “The deep state is serious, and it’s resisting
President Trump.” She declared twice that her adversaries were trying “to kill
people,” and drew applause by saying, “May we all have guns and concealed carry
to handle what’s coming!”
[A man looks up at a d.j. from a crowded dance
floor.]<https://www.newyorker.com/cartoon/a26072>“Do you have any true-crime
podcasts?”
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* <https://condenaststore.com/conde-nast-brand/cartoons>
Cartoon by Asher Perlman
This warlike mentality is shared by Groundswell, the political group that
Thomas has chaired. In a 2020 session of the Council for National Policy,
Rachel Bovard, the senior director of policy at the Conservative Partnership
Institute, described meeting weekly with Groundswell members to “vet” officials
for disloyalty, saying, “Ginni has been very instrumental in working with the
White House. . . . She really is the tip of the spear in these efforts.” Bovard
lamented Groundswell’s failure to weed out the whistle-blower Lieutenant
Colonel Alexander
Vindman<https://www.newyorker.com/news/our-columnists/attacked-by-republicans-alexander-vindman-testifies-to-the-power-of-truth>
before he gave testimony at Trump’s first impeachment trial. “We see what
happens when we don’t vet these people,” Bovard said. “That’s how we got
Lieutenant Colonel Vindman, O.K.?” Vindman, then the director for European
affairs on Trump’s National Security Council, testified that the President had
tried to pressure Ukraine’s leaders into producing dirt on Joe Biden’s family.
In retaliation, a smear campaign was mounted against Vindman. He suddenly found
himself fending off false claims that he had created a hostile work environment
at the N.S.C., and fighting insinuations that, because he was born in Ukraine
and had been invited to serve in its government, he had “dual loyalty.”
(Vindman had self-reported Ukraine’s offer, which he had rejected.) The Defense
Department conducted an internal investigation of the accusations and
exonerated him. But, Vindman told me, the attacks “harmed my career.” He went
on, “It’s un-American, frankly, that a sitting Justice of the Supreme Court,
who is supposed to be apolitical, would have a wife who is part of a political
vendetta to retaliate against officials who were dutifully serving the public
interest. It’s chilling, and probably has already had an effect on silencing
other whistle-blowers.”
Another target of Groundswell members was Trump’s former national-security
adviser H. R. McMaster, who was deemed insufficiently supportive of the
President. According to the
Times<https://www.nytimes.com/2021/05/13/us/politics/mcmaster-fbi-trump-project-veritas.html>,
in 2018 Barbara Ledeen, a Republican Senate aide who had reportedly developed
Groundswell’s enemies list with Ginni Thomas, participated in a plot to oust
McMaster by secretly taping him bad-mouthing Trump. Ledeen, who is a close
friend of Ginni Thomas’s, told the Times that she’d merely acted as a messenger
in the scheme. The plan was to send an undercover female operative to snare
McMaster at a fancy restaurant. But McMaster quit before the sting was
executed. The Times also reported that another undercover operation—which
targeted government employees, including F.B.I. agents, suspected of trying to
thwart Trump’s agenda—involved operatives from Project Veritas, the
undercover-video group led by James O’Keefe. Ginni Thomas has given O’Keefe an
Impact Award, too.
It’s unclear whether the Crowdsourcers project that Thomas said she was
launching with O’Keefe’s help ever got off the ground. There’s little public
trace of Crowdsourcers, other than a tax filing from 2019, showing that it was
developed under the oversight of the Capital Research Center, a right-wing
nonprofit that does opposition research. Project Veritas’s chief legal officer
sent The New Yorker a statement saying that O’Keefe’s “schedule does not permit
such extracurricular activities” as Crowdsourcers. But, in a PowerPoint
presentation on the effort, in 2019, Thomas said that “James O’Keefe wanted to
head up” a part of the group aimed at “protecting our heroes.” The purpose of
Crowdsourcers, she said, was nothing less than saving America. “Our house is on
fire!” she went on. “And we are stomping ants in the driveway. We’re not really
focussed on the arsonists who are right around us!”
ADVERTISEMENT
Last year, Project Veritas asked the Supreme Court to hear its challenge to the
Massachusetts ban on surreptitiously taping public officials. The Court turned
down Project Veritas’s petition, as it does with most such requests.
Nevertheless, David Dinielli, a visiting clinical lecturer at Yale Law School,
told me that Ginni Thomas’s proclaimed political partnership with O’Keefe, and
her awarding of a prize to him, appeared to be unethical. “That’s what the code
of conduct is supposed to control,” he said.
Ginni Thomas has held so many leadership or advisory positions at conservative
pressure groups that it’s hard to keep track of them. And many, if not all, of
these groups have been involved in cases that have come before her husband. Her
Web site lists the National Association of Scholars—the group that has filed an
amicus brief in the lawsuit against Harvard—among her “endorsed charities.” The
group’s brief claims that the affirmative-action policies used by the Harvard
admissions department are discriminatory. Though the plaintiffs have already
lost in two lower courts, they are counting on the Supreme Court’s new
conservative super-majority to side with them, even though doing so would
reverse decades of precedent. Peter Wood, the president of the N.A.S., is
another Impact Award recipient. So, too, is Robert George, a legal scholar at
Princeton who, according to the N.A.S.’s Web site, serves with Ginni Thomas on
its advisory board. (He says that he has “not been active” on the board.) He
received a “Lifetime” Impact Award from Ginni Thomas in 2019, and recently
filed an amicus brief before the Supreme Court, in support of Mississippi’s ban
on nearly all abortions after fifteen weeks of pregnancy.
In April, 2020, when Ginni Thomas was serving as one of eight members on the
C.N.P. Action board, it was chaired by Kelly Shackelford, the president and
C.E.O. of First Liberty, a faith-based litigation group that is currently
involved in several major cases before the Court. Last week, to the surprise of
many observers, the Court agreed to hear a case in which First Liberty is
defending a football coach at a public high school in Washington State who was
fired for kneeling and praying on the fifty-yard line immediately after games.
Richard Katskee, the legal director of Americans United for Separation of
Church and State, who is defending the school board, told me that the case was
“huge,” and could overturn fifty years of settled law. Shackelford’s group is
also the co-initiator of another case before the Court: a challenge to a Maine
law prohibiting the state from using public funds to pay parochial-school
tuition for students living in areas far from public schools. In addition to
these cases, First Liberty has filed lawsuits that challenge covid-19
restrictions on religious grounds—an issue that has come before the Court—and
Ginni Thomas and Shackelford have served together on the steering committee of
the Save Our Country Coalition, which has called covid-19 health mandates
“unconstitutional power grabs.” In a phone interview, Shackelford told me that
he couldn’t see why Ginni Thomas’s work with him posed a conflict of interest
for Justice Thomas. “It’s no big deal, if you look at the law on this,” he
said. It would be different, he argued, if there were a financial interest
involved, or if she were arguing First Liberty’s cases before the Court
herself—but, he said, “almost everyone in America is connected through six
degrees of separation.”
Another of Ginni Thomas’s fellow-directors on the C.N.P. Action board in 2020
was J. Kenneth Blackwell, a former Ohio secretary of state who is tied to one
of the most consequential gun cases currently under consideration by the
Supreme Court. In 2020, he was on the National Rifle Association’s board of
directors, and at the time the gun group’s official affiliate in New York was
challenging the state’s restrictions on carrying firearms in public spaces.
Earlier this term, the Court heard a related challenge, and a decision is
expected later this year. (Blackwell didn’t respond to an interview request.)
Meanwhile, the Web site friendsofnra.org currently boasts that a winner of its
youth competition had the opportunity to meet with “the wife of current Supreme
Court Justice Clarence Thomas.”
For lawyers involved in cases before the Supreme Court, it can be deeply
disturbing to know that Ginni Thomas is an additional opponent. In 2019, David
Dinielli, the visiting lecturer at Yale Law School, was a deputy legal director
of the Southern Poverty Law Center, which had submitted an amicus brief in a
gay-rights case before the Court. He told me he was acutely aware that Ginni
Thomas and other members of the Council for National Policy loathed the
Southern Poverty Law Center, which tracks right-wing hate groups. In 2017,
C.N.P. Action directed its members to “commit to issuing one new post on
Facebook and Twitter each week about the Southern Poverty Law Center to
discredit them.” In Thomas’s leaked 2018 speech to the Council for National
Policy, she denounced the S.P.L.C. for calling the Family Research
Council—which is militantly opposed to L.G.B.T.Q. rights—a hate group.
For Dinielli, the idea that a Justice’s spouse belonged to a group that had
urged its members to repeatedly attack his organization was “counter to
everything you’d expect if you want to get a fair shake” before the Court. He
explained, “These activities aren’t just political. They’re aimed at raising up
or denigrating actors specifically in front of the Supreme Court. She’s one
step away from holding up a sign in front of her husband saying ‘This person is
a pedophile.’ ”
Dinielli went on, “The Justices sit literally above where the lawyers are. For
these people to do the job they were tasked with, they have to maintain that
level. But this degrades it, mocks it, and threatens it.” He warned, “Since the
Court doesn’t have an army, it relies on how it behaves to command respect.
Once the veneer cracks, it’s very hard to get it back.” ?
Published in the print edition of the January 31,
2022<https://www.newyorker.com/magazine/2022/01/31>, issue, with the headline
“Ginni Thomas’s Crusades.”