July 31, 2013


In 2011, Supreme Court Justice Clarence Thomas gave a speech to the Federalist Society where he defended Ginni Thomas' activism, saying he and Ginni "believe in the same things." Toward the end, he said they were "equally yoked" because they both were defenders of liberty.

That's a lovely sentiment, but when placed in a larger context, particularly with regard to her current activism with the likes of True the Vote, the Daily Caller, and the entire Groundswell team, it's an extreme conflict of interest.

Clarence Thomas is only one example of the conflicts in which our government is awash, but his is an egregious one.

In his 2011 profile of Clarence Thomas, Jeffrey Toobin defined his role this way:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

Let's just get this out of the way right now. When a sitting Supreme Court justice is married to a woman who received nearly a million dollars from a wealthy Texas billionaire to oppose the Affordable Care Act in a high-profile fashion, the answer shouldn't be that spouses are entitled to do whatever they want.

There are circumstances where they can't do what they want, and one clear one is a situation where their spouse is going to rule on a related case. No other federal judge would be permitted to hear or issue opinions about cases where his or her spouse is publicly acting as advocate for one side or the other.

It's unethical.

But the United States Supreme Court has written its own rules, and specifically exempted itself from the federal Judicial Code of Conduct. Common Cause did a lot of work on this in 2010 and 2011. Here's the money quote:

Federal law requires a justice to recuse himself when: He knows that…his spouse…has a financial interest in the subject matter in controversy…or any other interest that could be substantially affected by the outcome of the proceeding.

Here are a few cases that Justice Thomas did not recuse himself from, where Ginni Thomas had both a financial interest and other interests in the outcome:

Citizens United - Liberty Central was one of the beneficiaries of the Citizens United decision. Nearly a million dollars went to Ginni Thomas to stand in opposition to nearly everything, including the Affordable Care Act.

NFIB vs. Sebelius and Florida vs. Department of Health and Human Services - These were the two Affordable Care Act cases decided in June, 2012. Thomas joined other conservatives on the court to make the Medicare expansion optional, which means that about half of the poor people in this country will still not have access to affordable health care. That is a symbolic but important victory for Ginni Thomas.

Shelby County vs. Eric Holder The Voting Rights Act Case decided this June could arguably be Clarence Thomas' most important swing vote, and at a time where Ginni Thomas was deeply involved with True the Vote and their cabal of hard-core right ideologues. In Justice Thomas' dissent, he wrote that he concurred with striking Section 4 of the VRA, but wouldn't stop there. He explained that he "would find Section 5 of the Voting Rights Act unconstitutional as well." No surprise, then, to find that True the Vote also opposes Section 5 of the VRA, and has several blog posts written by Groundswell participant J. Christian Adams about it. TTV stood in opposition because Section 5 was used to block Voter ID laws, and Voter ID laws are a way to suppress minority votes.

These three cases concern national policy drawn along clear partisan lines. But there have been other cases which concern corporate conduct as well, where Justice Thomas bolstered the corporate stance while his wife was and is the beneficiary of generous corporate dollars.

When news of Mrs. Thomas' activism in the Groundswell group broke, several organizations questioned the ethics underneath Justice Thomas' refusal to recuse.

Mother Jones:

Arn Pearson, vice president for policy and litigation at Common Cause, says that Thomas' work with Groundswell raises "important questions about appearances of conflict, especially if the things she works on end up coming before the Supreme Court, and especially if [the members of Groundswell] end up getting involved in elections." The work she's doing now, he says, doesn't pose quite the same conflicts as her anti-Obamacare advocacy, in which she was directly attacking a specific law whose future rested with the Supreme Court her husband sits on.

Media Matters:

Ginni Thomas also actively coordinated Groundswell's efforts to assist in the attacks on voting rights precedent, doing so in the months leading up to the Supreme Court's infamous 5-4 conservative Shelby County decision. In communications with voter suppression groups, such as True the Vote, that sought to "reframe" voter ID laws because they are "already lost & equated with racism," Ginni Thomas demanded to know who "are key working group members on ELECTION LAW, ELECTION REFORM and THE LEFT'S NARRATIVES, Groundswell???" (emphasis in original). It is this unapologetic Groundswell involvement in cases that were actively pending before the Supreme Court that reveals Ginni Thomas is continuing the ethically dubious right-wing activism that raised so many red flags previously.

Common Cause:

Common Cause for the last several years has been urging the Supreme Court to create an ethics code. There is plenty of evidence it’s needed. Common Cause argued a few years ago that Justice Thomas had a conflict of interest when he participated in the Citizens United case because Ginni Thomas at that time was running a conservative nonprofit fighting the “tyranny” of President Obama that directly benefited from removing limits on corporate and union spending on politics. That was clearer cut because Ginni benefited financially from the Citizens United decision.

Given that Justice Thomas did not see fit to recuse himself due to these clear conflicts of interest, it's time to impeach him.

It's not enough for the Supreme Court to shrug at basic legal ethics anymore, and there is a clear, consistent pattern where Justice Thomas serves up friendly opinions to the causes which pay Ginni Thomas' salary.

If that isn't, at the very least, unethical and likely corrupt, what is?

Write or call your congress member. Start a petition. It's time to get the word out that we refuse to accept corruption on the highest court in the land.

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