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Should Justice Thomas recuse himself from hearing cases about Jan. 6 or the election?


Ginni Thomas has long been a conservative political activist. She's also married to Justice Clarence Thomas. And while they've generally stayed in their own lanes professionally, news broke yesterday that Ginni Thomas exchanged multiple text messages with Trump White House chief of staff Mark Meadows following the 2020 elections, urging him to work to overturn the results of the election. The Washington Post and CBS first reported the story. NPR legal affairs correspondent Nina Totenberg is here to tell us about how this could play out in the workings of the Supreme Court. Hi, Nina.


SHAPIRO: What was in these text messages?

TOTENBERG: Well, these are among the texts that Mark Meadows, the White House chief of staff, turned over to the January 6 committee in the House of Representatives. But that was before he stopped cooperating with the committee. And there are suggestions in these texts that Ginni Thomas may have had contacts with others in the White House and on Trump's legal team. As the Post and CBS reported, these indicate an extraordinary pipeline between Ginni Thomas and the White House after the election, when Trump and his allies were publicly saying that they would take their claims of a stolen election all the way to the Supreme Court.

SHAPIRO: And they did take it to the Supreme Court. And the court passed, right?

TOTENBERG: Right. In February of 2021, a month after Joe Biden was sworn in as president, the court refused to hear election challenges brought by Trump and his allies. Thomas wrote a blistering dissent, saying that the court should have heard the case.

SHAPIRO: And so the question now is, knowing what we know, should he have recused himself because of his wife's activities? Like, is that a conflict of interest? And are there cases in the future where he should recuse?

TOTENBERG: The code of Judicial Conduct basically says that judges need not recuse themselves just because their spouses have opinions and express them publicly. That's what NYU law professor Stephen Gillers told me last week when I asked him about some of Ginni Thomas' other newly reported conservative activism. Gillers is the author of a leading text on legal ethics. And basically, he said a judge doesn't have to recuse himself because his wife was exercising her First Amendment rights. But when I talked to him today, these texts had changed his opinion.

STEPHEN GILLERS: She crossed the line.

TOTENBERG: He said that in this case, she wasn't merely expressing her views about the election.

GILLERS: Ginni Thomas, by reaching out to Meadows and possibly others, joined the team. She became part of the stop the steal team. That team's strategy included eventual appeals, if necessary, to the Supreme Court.

SHAPIRO: Nina, is there any indication in these texts that Clarence Thomas knew what his wife was doing?

TOTENBERG: No. There's one reference in the texts in which Ginni Thomas replies to Meadows saying, quote, "thank you, needed that - this plus a conversation with my best friend just now. I will try to keep holding on," close quote. Now, we don't know who her best friend is, but Justice Thomas frequently refers to his wife as his best friend.

Even if he didn't know then that his wife was essentially on the Trump team - and there are times in the law when willful ignorance is not an excuse - he certainly knows now. And there are cases working their way through the lower courts that very likely will come to the Supreme Court - cases involving the House investigation of the January 6 attack on the Capitol, for instance, and Trump's involvement, if any, in the attack. So the recusal question is very likely to come up again. And professor Gillers is very clear now about what he thinks the rules are.

GILLERS: I believe that as of now, Clarence Thomas has to recuse from any case involving the committee, the election or the invasion.

SHAPIRO: He says has to recuse. But what if he doesn't? Are there any consequences? Is there any recourse?

TOTENBERG: Not really. The only real recourse, I suppose, is public pressure. The judicial code of conduct is binding on lower court judges, and there are enforcement mechanisms for that, but it's only voluntary for Supreme Court justices.

SHAPIRO: NPR legal affairs correspondent Nina Totenberg. Thank you.

TOTENBERG: Thank you, Ari. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.