But for years, she has shown few qualms about how her public outspokenness and political ties, which critics say is undermining the public’s trust in the institution. Justice Thomas, who declined a CNN request for an interview, has credited his wife for supporting his career on the bench, even as he has seemed to distance himself from her alignment with Republican causes.
Ginni Thomas, through an associate, declined to comment for this story.
“There’s no enforcement mechanism or procedure” for Supreme Court recusal decisions, said American University Washington College of Law professor Amanda Frost, even though the justices are covered by the same recusal statute that applies to lower courts.
“The common practice is for each and every justice to decide on their own whether to recuse — even if asked,” Frost, who has studied judicial ethics, told CNN. “So, there’s no review by any other justice or any other judicial body — and that I think is problematic — and then there’s no transparency.”
When cases are before lower courts, parties have the option to request that judge recuse because of a potential conflict, Frost said, and a district court judge’s decision not to recuse can be appealed to an appeals court.
That process is difficult, Frost said, but “there is a method of getting review of it and there’s no method for reviewing the justices.”
Ginni Thomas — who married Clarence in 1987, when Clarence led the Equal Employment Opportunity Commission — has long been involved in a host of conservative causes. The type of work she’s done on each issue, and how closely it is linked to cases before the Supreme Court, vary across the specific subjects. But the justice’s wife’s activism has no parallels in the Supreme Court’s history, court ethics experts told CNN, so there is no clear tradition to measure his recusal approach against.
“No spouse, to my knowledge, has ever actively lobbied other branches of government in the public sphere on issues before the justices like Ginni Thomas has,” said Gabe Roth, executive director of Fix the Court, an organization that pushes for transparency reforms across the federal judiciary.
The letter, where she was joined by several conservatives, said that the committee “improperly issued subpoenas and other investigatory tactics designed not to pursue any valid legislative end, but merely to exploit for the sake of political harassment and demagoguery.”
Even if there’s no evidence that Thomas’ vote in the Trump documents case was influenced by his wife, her views about and connections to the January 6 investigations could set off “alarm bells” for people who already skeptically view the court as a partisan and political institution, according to Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law
Those alarm bells, he said, “could be easily dispelled with more transparency, with more clarity from the justices, with more recognition on their part of the need to be very public about what their standards are, how they enforce them, and in close cases, why they are not recusing.”
That language of the recusal statute, Frost said, covers “anything that would lead to an appearance of partiality, an appearance that … they’d be biased.”
“Even if, in reality they don’t think it would be, appearance alone would disqualify,” Frost said.
‘It would help if there were rules, and if those rules were clear’
The procedures are murky at best for how a justice should approach situations where a personal or financial connection to a case could require his or her disqualification.
That has left court observers guessing what led to the recusals and how justices are weighing those decisions. Justices step away from cases where they were involved — perhaps as lawyers or lower court judges — in earlier stages of the litigation, which is a category of required recusals spelled out by federal law. The statute also has recusal rules addressing circumstances of a “financial interest,” which appear to have prompted recusals in cases where a justice holds stock in a company that’s party to a case.
Lower court judges assemble lists of people and entities to which they have personal connections that could amount to conflicts. Those lists are then used by the court software that assigns incoming cases so that cases involving those parties can be directed to judges without connections to them.
But the Supreme Court — with only nine justices available to weigh in on some of the most contentious and important legal issues in the country — is not necessarily geared to operate that way.
“If you’re a lower court judge, you should have a broader recusal list, theoretically because you’re more fungible at that level, you can be replaced,” Roth said.
“In her mind, presumably, she looked at the details of the case and said, ‘Well, my dad had nothing to do with this,'” Roth said.
The court’s public information office did not respond to CNN’s inquiries seeking explanation for Kavanaugh’s and Barrett’s respective decisions to recuse and not recuse from those cases.
Vladeck pointed to the risk of “recusal shopping” — in which parties could try to exploit certain recusal rules to force the disqualification of justices who might rule against them — as a reason that the Supreme Court should not necessarily follow the same rules as lower courts.
“I do think that what this [Ginni Thomas] episode underscores is that it would help if there were rules, and if those rules were clear, and if the justices did a better job of articulating exactly when they will and will not step back from a case,” Vladeck said.
Court records from Justice Thomas’ time on the bench through 2020 show 32 matters in which he indicated he was not participating, according to a review from of the records by Roth.
‘They are different people. They do different things’
For a justice to have a spouse with a high-profile profession in politics is itself a somewhat modern development, given that women only fully entered the workforce in the last half-century and the court did not get its first female justice until 1981.
“In the modern era, the spouse should not have to subjugate themselves to their powerful husband or wife,” said Jennifer Stefano, a conservative activist who has partnered with Thomas in her work on various political issues. “I mean, you still have a First Amendment right.”
Ginni Thomas has been linked to groups that have filed what’s known as “amicus” or “friend of the court” briefs, where groups and individuals not directly involved in a case give the court their views of the legal issues before the justices. One such individual is Frank Gaffney, an immigration hardliner who signed a 2017 amicus brief supporting the Trump administration travels restrictions on some majority Muslim countries. As first reported last month by the New Yorker, tax documents for that year and the year after show an organization led by Gaffney, the Center for Security Policy, paying thousands in contractor fees to a consulting firm run by Ginni Thomas. Gaffney wrote in an email to CNN that Ginni Thomas was “not involved in any way” with the amicus brief filed in that case.
Its president, Peter Wood told CNN that Thomas has advised him on some matters, but that he has no relationship with her husband. According to Wood, she provided no input on the affirmative action briefs filed with the Supreme Court.
“As far as I know she doesn’t even know that we filed such briefs. I don’t talk about those sorts of issues with her,” he told CNN, adding that he saw no reason for Justice Thomas to recuse from the cases because of the group’s connection to his wife.
“I assume the public is capable of informing itself of the difference between a husband and wife,” Wood said. “They are different people. They do different things.”
It could be the case that additional recusal protocols would not disqualify Thomas from the proceedings reviewing policies about which his wife has advocated.
“I would be careful to craft a rule that didn’t make it impossible to have… two working people married to each other and have one of them be a judge,” Frost said, while acknowledging the Ginni situation is “unique.”
But Frost and other legal experts said that making the procedures less opaque would help build trust among the court skeptics doubtful of Thomas’ and other justices’ refusal to recuse in certain cases.
“The Supreme Court has really fallen down on the task,” Frost said. “They’ve gotten very used to not being transparent on many different issues on many different fronts.”
Ginni Thomas’ political activism brings scrutiny to Justice Clarence Thomas and the Supreme Court’s recusal rules