Judge Thomas should not retire from electoral cases

We argued on Saturday that the leak of text messages from Ginni Thomas, collected by the Jan. 6 House Select Committee, was intended to harm her husband, Justice Clarence Thomas, and the Supreme Court. The justification certainly didn’t last long.

Democrats and their media allies quickly swept past Ginni to demand that Judge Thomas resign (Rep. Alexandria Ocasio-Cortez) or be impeached (Rep. Ilhan Omar) or at least resist hearing election-related cases (Senator Amy Klobuchar). , et al.).

The purpose of the accumulation is to hurt the reputation of the judiciary as part of the larger effort to delegitimize the current Supreme Court. Judges are reviewing cases on abortion, gun rights, racial preferences and the administrative state, which Democrats fear will run counter to their policy preferences.

If you doubt that the court itself is a target, consider this headline in the Washington Post: “John Roberts Must Be At His Limit.” Or this from the St. Louis Post-Dispatch: “Justice Thomas’s bias against Trump destroys the integrity of the Supreme Court. He has to step down.”


The correct answer is that Ginni Thomas poses no threat to the court no matter how bizarre her views on the 2020 election are. She does not sit in court and there is no reason to believe that her personal political views affect Judge Thomas’s judicial impartiality.

In addition, any decision to walk out rests solely with Judge Thomas. Our own view is that the judiciary has what our friends at the New York Sun have the “duty to sit in these cases,” and that to dismiss would be a waiver of that duty.

The general recusal principle embodied in the US Code states that a judge should retire from any case where “the judge’s impartiality might reasonably be called into question.” The judges follow this principle, but they have an obligation that does not apply to other judges. “Judges of lower courts are free to replace one another,” Chief Justice Roberts wrote in his 2011 Annual Report on the Federal Judiciary when addressing the recusal issue.

“But the Supreme Court consists of nine members who always sit together, and when a judge retires from a case, the court must sit without its full members,” the chief continued. “A judge accordingly cannot retire from a case out of convenience or simply to avoid controversy.”

In particular, the Chief cited the Canons of Judicial Ethics of 1924, which deal with judicial independence. “It provides,” he wrote, “that a judge ‘should not be swayed by partisan demands, public outcry, or considerations of personal popularity or notoriety, and should not fear unjust criticism.’ Such concerns play no part in deciding a walkout.”

Under this standard, a judge should resign if he has a financial or significant personal interest in either party to a case. Or when the judge, a spouse, or a family member is a party to the litigation. Supreme Court nominee Ketanji Brown Jackson recently said she would withdraw from the case challenging Harvard’s admissions standards because she is a member of Harvard’s board of directors. This is a reasonable reason for recusal.

But Ginni Thomas’s personal views on the election don’t make her a party to a case that’s likely to go to court. In her text messages in 2020 and 2021 to then-White House Chief of Staff Mark Meadows, she expressed her personal political view that the 2020 election had been stolen.

Very few cases brought before the Court are in some sense non-political. If a spouse’s political views are a disclaimer — say, abortion — the court may never have the full nines. That result may be exactly the result Democrats and media critics of Ginni and Justice Thomas are hoping to achieve with their walkout demands.


The late Judge Antonin Scalia took up the issue of media and political criticism in a notable and relevant memorandum of rejection in a 2004 case involving his hunting trip with Vice President Dick Cheney and others. “Resigning in the face of such allegations would give sections of the press veto power over the participation of judges who had social contacts with, or even known to be friends with, a named official. This is unbearable.”

The January 6 committee had no other reason for leaking Ginni Thomas’ texts than to embarrass her and the judiciary. And indeed, some committee members are now saying they could call Ms Thomas to testify for more critical headlines. Judge Thomas has every right and every reason to avoid this partisan noise and hear voting cases as if his wife never sent those texts.

Journal Editor’s Report: Supreme Court confirmation hearings end in Liberal attack on Justice Clarence Thomas. Images: Zuma Press/AP Composite: Mark Kelly

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https://www.wsj.com/articles/justice-clarence-thomas-shouldnt-recuse-ginni-thomas-texts-donald-trump-supreme-court-11648678766 Judge Thomas should not retire from electoral cases

Ethan Gach

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