By Ruth Marcus
The latest bombshell, from ProPublica and Documented, involves Thomas’s gushing, all-caps thank-you email to the conservative First Liberty Institute. This is not just any conservative organization — it’s one that litigates extensively before the Supreme Court, on some of its most contested cases involving religious liberty and LGBTQ+ rights.
And Thomas’s email was not just some generic note of appreciation. It was to praise First Liberty for its fierce, and deep-pocketed, fight against … wait for it … proposals to reform the Supreme Court and strengthen ethics enforcement against the justices.
“YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH,” Thomas wrote in an email read by First Liberty President Kelly Shackelford during a July 31 call with his group’s top donors, according to the report.
Shackelford shared that a D.C.-based First Liberty staffer had met early that day with Ginni Thomas, who then sent Shackelford an email praising the group for its role in fighting Supreme Court reform.
“Great to meet through the meetings today,” Thomas wrote. “I cannot adequately express enough appreciation for you guys pulling into reacting to the Biden effort on the Supreme Court,” she added, referring to President Joe Biden’s recently announced proposals on term limits and an enforceable ethics code.
The impropriety here is multilayered — and staggering.
Ginni Thomas is a political activist by vocation, and, as I’ve written before, that’s her prerogative. It’s her constitutional right. And justices’ spouses have every right to pursue separate careers, including in politics and advocacy. “We have our own separate careers and our own ideas and opinions too,” she told the Washington Free Beacon. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”
That was in 2022, when reports surfaced about Ginni Thomas’s attendance at the Jan. 6 rally on the Ellipse and her broader involvement in the “Stop the Steal” movement, including pressing state legislators to set aside the election results.
Now Ginni Thomas’s isn’t just lobbying to “Stop the Steal” — she’s trying to Stop the Reform of her husband’s own institution. So much for separate careers. Ginni Thomas’s own behavior around the 2020 election, and Clarence Thomas’s conduct in accepting, and failing to disclose, thousands of dollars’ worth of gifts from wealthy conservatives helped trigger the push for court reform in the first place. Now, we know, Ginni Thomas is a behind-the-scenes player seeking to frustrate any changes — and a grateful (“THANK YOU SO, SO, SO MUCH”) beneficiary of First Liberty’s efforts on the Thomases’ behalf.
This would be wildly inappropriate if First Liberty were a run-of-the-mill ideological organization, but the group isn’t only that. It’s a frequent litigant before the Supreme Court and the lower federal courts.
Remember the praying football coach? He’s a First Liberty client; Clarence Thomas voted that his constitutional rights had been violated when he lost his job. The Maine families who said they were entitled to state funding to send their children to religious schools? First Liberty clients, too, and also beneficiaries of Thomas’s vote.
It was clear, or so I thought, that Clarence Thomas should recuse himself from deciding Jan. 6-related cases after Ginni Thomas called the election a “heist.”
There isn’t merely an ethics code to which the justices have voluntarily subjected themselves, albeit under duress. There’s a federal law that requires justices, like all other judges, to recuse themselves in situations in which their impartiality might reasonably be questioned.
Clarence Thomas, apparently, didn’t think matters rose to that level when it came to election-related cases. But how can he justify continuing to sit on cases involving First Liberty now that we know Ginni Thomas’s is “SO, SO, SO” beholden to the group?
In his talk to the group’s “very top supporters,” Shackelford improbably cast the battle against court reform as a fight for the rule of law, with those pressing for an enforceable ethics code motivated not by concern about the justices’ behavior but a desire to change the outcome of cases with which they disagree.
He reserved his harshest words for Justice Elena Kagan, who had the apparent temerity to suggest, in July remarks at a judicial conference, that the court would benefit if the ethics code it adopted had an enforcement component. “That is incredible, somewhat treasonous, what Kagan did,” Shackelford said. “The chief justice rules the court. They’re trying to keep the other branches’ hands off of them. And then you’ve got Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she’s doing.”
Treasonous? Disloyal? The addition of a modifying “somewhat” doesn’t begin to justify Shackelford’s use of those words.
The chief justice doesn’t “rule” the court — as he often says, he’s one of nine. Kagan’s modest proposal isn’t for Congress to impose an enforcement mechanism on the court, it is for the chief justice to appoint “some sort of committee of highly respected judges with a great deal of experience with a reputation for fairness” to review ethics questions. And as she pointed out, such a panel “would provide a kind of safe harbor” for justices unfairly accused of misconduct.
This is hardly treasonous. As Justice Ketanji Brown Jackson told CBS News’s Norah O’Donnell in remarks broadcast this week, “a binding code of ethics is pretty standard for judges. And so I guess the question is, ‘Is the Supreme Court any different?’ And I guess I have not seen a persuasive reason as to why the court is different than the other courts.”
But there is a persuasive reason the high court does need an enforcement mechanism. Her name is Ginni Thomas.
