VSLaurence Thomas, the hardline conservative Supreme Court justice, is facing calls for his recusal in the case about race-based affirmative action in college admissions that the court agreed to hear this week.
The case, which is being brought against Harvard and the University of North Carolina, is the latest potential conflict of interest involving Thomas and his wife Virginia Thomas. Ginni, as she is known, is a prominent right-wing activist who speaks out on a range of issues that frequently come before the nation’s highest court.
A one-person powerhouse conservative, she set up her own lobbying firm Liberty Consulting in 2010. the descriptionshe “fought for conservative principles in Washington” for more than 35 years.
The challenge to the race-conscious admissions policies of both universities comes from Students for Fair Admissions (SFFA). Its leader Edward Blum was a implacable adversary affirmative action and voting rights laws.
His argument that race-based affirmative action is a quota system that discriminates against Asian students is framed with the Supreme Court’s newly emboldened right-wing majority in mind. A central player in this new six-judge Conservative supermajority is Clarence Thomas, who is the oldest of the justices and at 73 will be the oldest once Stephen Breyer retires.
Judge Thomas’ influence has skyrocketed in recent months with the court’s rightward shift following Donald Trump’s three appointments, to the point that some pundits are now dubbing him the unofficial chief justice of the court.
The SFFA’s lawsuit to overturn the affirmative action has received enthusiastic support from the conservative National Association of Scholars. He filed a amicus brief in support of the lawsuit, accusing Harvard admissions officers of being biased against Asian students and stereotyping them as “uninteresting, uncreative, and one-dimensional”.
Ginny Thomas sits on the advisory board of the National Association of Scholars. Observers fear his position with a group that intervened in the affirmative action case presents the appearance of a conflict of interest.
Noah Bookbinder, chairman of the government’s ethics watchdog Crewtold the Guardian that while Supreme Court rules do not legally require Thomas to recuse himself, there were serious questions that needed to be answered.
“Ginni Thomas is on the advisory board of an organization that has taken a very specific position on a case before her husband. This will make it difficult for the public to be sure that it will be completely unbiased.
Bookbinder said that under the circumstances “the best course of action would be for him to recuse himself or for her to cease involvement with this organization.”
The potential appearance of a conflict of interest in the Harvard case was noted in a recent investigation by New York journalist Jane Mayer who delves into the couple’s intersecting interests. The article recounts in devastating detail the numerous instances where Ginni’s political activism appears to pose problems for the image and integrity of the court.
“Ginni Thomas has held so many leadership or advisory positions in conservative lobby groups that it’s hard to keep track of them,” Mayer concluded. “Many, if not all, of these groups have been involved in cases that have come before her husband.”
In the most disturbing recent case, Ginni Thomas lent her voice to Trump’s big lie that the 2020 presidential election was stolen from him. She spoke out on the matter during the build-up to the violent uprising at the US Capitol on January 6 last year that left five people dead and more than 100 police injured.
On the morning of January 6, Mark Joseph Stern of Slate reported, Thomas posted words of encouragement for “Stop the Steal” marchers in Washington on his Facebook page. “LOVE the MAGA people!!!!,” she said. “GOD BLESS EVERYONE OF YOU STANDING OR PRAYING!”
Shortly after the uprising, Thomas was forced to apologize to her husband’s former Supreme Court clerks for comments she made to them privately that appeared to bemoan Trump’s defeat in the 2020 election. The remarks were sent to a private mailing list called “Thomas Clerk World”.
In the emails, disclosed by the Washington Post, she wrote: “Many of us are suffering, having left everything on the pitch, to preserve the best of this country. I feel like I have let down my parents who tried their best and m have learned to work to preserve freedoms.
An even more direct intervention into the politics surrounding Trump and the Big Lie came last December when Thomas joined 62 other influential conservatives in signing a open letter to the leader of the Republicans in the House of Representatives, Kevin McCarthy. He urged him to kick out Congressmen Liz Cheney and Adam Kinzinger from the Republican Party.
Their sin, according to the letter’s authors, was to serve on the House committee investigating the January 6 insurrection. They described the committee as an “openly partisan political persecution that disrespects the rule of law in our country. [and] legal harassment to private citizens who have done nothing wrong”.
Since the Capitol insurrection, the Department of Justice has stopped more than 725 accused in connection with the storming of the building. Federal prosecutors have charged 225 people with assaulting, resisting or obstructing police officers, including more than 75 charged with using a deadly or dangerous weapon or causing grievous bodily harm to a police officer.
Last week, the Supreme Court rejected Trump’s attempts to block the Jan. 6 committee from acquiring its White House records from the time of the attack. There was only one dissent from the bench to that 8-to-1 decision: it came from Clarence Thomas.
“The activities of Ginni Thomas are unprecedented in Supreme Court history for a spouse engaged in matters that are constantly before the court,” said Gabe Roth, executive director of Repair the yard, a non-partisan group that advocates Supreme Court reform. “The appearance of impropriety is itself impropriety – all the Supreme Court has is public trust, and once you fix it, you’re in trouble.”
Roth added that Thomas’ comments in the days leading up to Jan. 6 were clearly problematic given her husband’s vote on the Trump documents. “It is possible that the January 6 committee had emails between Ginni Thomas and administration officials from that day or the days leading up to it, given her voice. This is definitely a place where Judge Thomas should have recused himself.
Should the right-wing majority around Thomas use their newfound muscle to ban affirmative action, as it does widely predicted, it would mark the negation of more than 30 years of established constitutional law in this area. What lies ahead bears a strong resemblance to Roe v Wade, the landmark 1973 decision that legalized abortion, which the court is probably ready weaken or even outright overthrow.
Mayer points out in the New Yorker that an amicus brief was filed in the Supreme Court case challenging Roe by Robert George, who also sits on the advisory board of the National Association of Scholars alongside Ginni Thomas.
Roth told the Guardian there might be a simpler solution to Clarence Thomas’ full disqualification from the affirmative action case. That would be tantamount to suppressing the National Association of Scholars’ amicus brief.
“There is an easy way to deal with this perceived conflict of interest – to remove the amicus brief,” he said.
It is established practice in all federal appellate courts, but not the Supreme Court, that amicus briefs submitted by anyone connected with a judge hearing a case are routinely rejected.
National Association of Scholars president Peter Wood told the Guardian he was not aware of any conflict of interest related to Thomas’ position on the advisory board. “Ms. Thomas’s role is to provide advice to the NAS in response to questions I have posed to her about NAS policy and initiatives. I never discussed with her any NAS case that might go to the Supreme Court,” he said.