Ginni Thomas and the Supreme Court’s crisis of legitimacy

(Reuters) – From antitrust to zoning, I’ve written about most areas of the law – but I steer clear of immigration.

That’s because I’m married to an immigration judge.

If I wrote a column calling for immediate full citizenship for all undocumented immigrants — or for all undocumented immigrants to be immediately put in jail – I’d be concerned my opinion, fairly or not, could reflect on my spouse.

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Better to stay out of his lane.

Maybe that’s part of why I find Virginia (Ginni) Thomas’ alleged conduct related to the 2020 presidential election so off-putting.

Last week, my Reuters colleagues confirmed that Thomas, the wife of US Supreme Court Justice Clarence Thomas, agreed to be interviewed by the US congressional panel probing the Jan. 6, 2021, attack on the Capitol.

Her lawyer Mark Paoletta told Reuters that she “is eager to answer the Committee’s questions to clear up any misconceptions about her work relating to the 2020 election.”

The committee obtained emails between her and former President Donald Trump’s election attorney John Eastman, who pushed the theory that then-Vice President Mike Pence could block Congress from certifying Trump’s 2020 election loss, the Washington Post previously reported.

The Post also reported that she texted Mark Meadows, Trump’s White House chief of staff, and emailed lawmakers in Arizona and Wisconsin, urging them to assist in overturning the election of Joe Biden as president.

Paoletta did not respond to a request for comment from his client, nor did Ginni Thomas’ firm, Liberty Consulting. A Supreme Court spokesperson also did not respond to a request for comment from Clarence Thomas or his wife.

To be clear, I’m not suggesting Ginni Thomas, who has a JD from Creighton University School of Law, should limit her activity to nodding adoringly at her husband. But her political activism is placing him — and the Supreme Court as an institution — in a difficult position.

While Thomas for years has been a right wing agitator, assailing “the big government agenda” and praising “Tea Party patriots” in a 2010 speechfor example, her embrace of efforts to overturn a lawful presidential election, if true, are of another magnitude entirely.

“Spouses of justices since 1790 have exercised self-restraint in what they say and do in order to encourage public trust in the court,” legal ethics expert Stephen Gillers, a professor at New York University School of Law, told me. Ginni Thomas “alone has rejected that model, as she has a right to do, but she has acted without apparent regard for the harmful consequences of her actions.”

The high court is facing what’s been called a crisis of legitimacy, with the justices viewed in addition as partisan actors. The sentiment has magnified in the wake of the court’s June decision shrugging off decades of settled law to hold that the Constitution does not confer a right to abortion.

The Pew Research Center in a national survey released Sept. 1 found that just 48% of the public holds a favorable view of the court. Two years ago, that number stood at 70%.

I’m not blaming Ginni Thomas. But she’s not helping.

To be sure, she isn’t the only SCOTUS spouse navigating around the unique contours of her partner’s job. It’s just that the others have managed to do so without attracting much attention.

Consider Jane Roberts. The wife of Chief Justice John Roberts quit her job as a partner at Pillsbury Winthrop Shaw Pittman in 2007, two years after her husband ascended to the high court, to become a legal recruiter.

Currently the managing partner of the Washington, DC, office of Macrae Inc, she declined comment via email, explaining that she does not talk to the press.

Justice Amy Coney Barrett’s husband Jesse Barrett is also an attorney, working at the Washington, DC, office of 17-lawyer South Bank Legal, which is based in Indiana.

A white-collar specialist, he has “tried several dozen federal cases to jury verdict and has handled numerous appeals, including successful arguments in state and federal appellate courts,” according to his law firm bio.

He did not respond to a request for comment.

The non-attorney spouses also have kept a low profile.

Justice Ketanji Brown Jackson’s husband, Patrick Jackson, is a surgeon.

Justice Brett Kavanaugh’s wife, Ashley Estes Kavanaugh, is the town manager for Section 5 of the Village of Chevy Chase, Maryland, which describes itself as a “small, quiet community of 227 houses and one restaurant.”

Justice Samuel Alito’s wife Martha-Ann Alito was a law librarian before the couple had children.

Justice Neil Gorsuch’s wife Louise Gorsuch, who has not been reported to work outside the home, did pen a Fox News essay published on Sept. 21, 2019. But it was hardly controversial. Headlines “Why I became an American citizen,” it extolled her love of America and its ideals.

Justice Sonia Sotomayor is divorced, and Justice Elena Kagan never married.

A Supreme Court spokesperson did not respond to requests for comments from the justices or their spouses.

Ginni Thomas’ opinions are her own and may actually tell us nothing about where her husband stands on Trump’s false claims of election fraud.

But the fact that she’ll be testifying before a congressional committee about her connection to these efforts is enough to cast a shadow on the highest court in the land.

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