The Supreme Court's Thomas family problem

What did Justice Clarence Thomas know, and when did he know it?

The question usually gets directed at politicians, not judges, but it's a fair one in light of the revelation Thursday that Thomas' wife, Ginni, was working feverishly behind the scenes — and to a far greater degree than she previously admitted — in a high-level effort to overturn the 2020 presidential election.

As the Washington Post and CBS News first reported, Ginni Thomas, a supremely well-connected right-wing agitator, was in constant communication with the White House in the weeks following the election, strategizing over how to keep Donald Trump in office despite his incontrovertible loss. "Do not concede," she texted to Mark Meadows, Trump's chief of staff, on Nov. 6, the day before the major news networks called the election for Joe Biden. "It takes time for the army who is gathering for his back." (To date, Trump has not conceded.)

Thomas had already acknowledged some involvement in the fight over the 2020 election count, recently confirming that she attended the Jan. 6 Stop the Steal rally in Washington, but she said she went home before Trump spoke to the crowd and before a mob of hundreds stormed the Capitol in a violent attempt to block the certification of Biden's Electoral College victory. The texts reveal that her efforts to subvert the election were far more serious than we knew.

Now recall that in January, the Supreme Court rejected Trump's request to block the release of White House records relating to the Jan. 6 Capitol attack. Meadows had submitted a brief in the case supporting Trump. The court's ruling came as an unsigned order, with only one noted dissent: from Justice Thomas.

Perhaps Justice Thomas was not aware of his wife's text-message campaign to Meadows at the time. But it sure makes you wonder, doesn't it?

And that's precisely the problem: We shouldn't have to wonder. The Supreme Court is the most powerful judicial body in the country, and yet, as Alexander Hamilton reminded us, it has neither the sword nor the purse as a means to enforce its rulings. It depends instead on the American people's acceptance of its legitimacy, which is why the justices must make every possible effort to appear fair, unbiased and beyond reproach.

Many of them have over the years, out of respect for the court as an institution and for the public's faith in their probity. Just last week, Judge Ketanji Brown Jackson vowed that if confirmed she would recuse herself from an upcoming case challenging Harvard's affirmative-action policies because of her multiple personal and professional connections to the university. Legal-ethics experts are not even in agreement that her recusal would be necessary, but Jackson is right to err on the side of caution.

Thomas has paid lip service to this ideal. "I think the media makes it sound as though you are just always going right to your personal preference," he said in a speech last year. "That's a problem. You're going to jeopardize any faith in the legal institutions."

Bench memo to the justice: You know what jeopardizes public faith in legal institutions? Refusing to recuse yourself from numerous high-profile cases in which your wife has been personally and sometimes financially entangled, as the New Yorker reported in January. Especially when you have emphasized that you and she are melded "into one being." Or when you have, as the New York Times Magazine reported last month, appeared together with her for years "at highly political events hosted by advocates hoping to sway the court."

Yes, married people can lead independent professional lives, and it is not a justice's responsibility to police the actions of his or her spouse. But the brazenness with which the Thomases have flouted the most reasonable expectations of judicial rectitude is without precedent. From the Affordable Care Act to the Trump administration's Muslim ban to the 2020 election challenges, Ginni Thomas has repeatedly embroiled herself in big-ticket legal issues and with litigants who have wound up before her husband's court. All the while, he has looked the other way, refusing to recuse himself from any of these cases. For someone whose job is about judging, Justice Thomas has, in this context at least, demonstrated abominably poor judgment.

If Thomas were sitting on any other federal court in the country, he would likely have been required by the code of judicial ethics (tinyurl.com/judicial-ethics) to recuse himself many times over. But the code does not apply to Supreme Court justices, creating a situation in which the highest court in the land is also the most unaccountable.

The court is in deep trouble these days, pervaded by what Justice Sonia Sotomayor recently called the "stench" of partisanship — a stench arising in no small part from the Thomases' behavior. It is hard to imagine that the other justices, regardless of their personal politics, aren't bothered.

No one should have to choose between their devotion to their spouse and their duty to the nation. But Thomas has shown himself unwilling or unable to protect what remains of the court's reputation from the appearance of extreme bias he and his wife have created. He would do the country a service by stepping down and making room for someone who won't have that problem.