Historian Jeff Shesol: Ginni Thomas's 1/6 Involvement Poses Unprecedented Crisis for Court's Legitimacy

You don’t need to be a legal expert to know that one spouse shouldn’t sit in judgment in a case in which the other spouse is a witness — or a suspect. That’s as classic a conflict of interest as one can imagine, and by refusing to acknowledge it, Justice Thomas has brought great discredit on himself and his colleagues on the court. He’a also brought attention to another scandal that has lingered for decades: The justices have exempted themselves from enforceable conflict-of-interest rules that other judges must observe. Thomas gets to make his own call about recusal, and no one can do anything about it short of impeachment or a federal prosecution based on a judicial disqualification law no one is likely to pursue.

For a little context and perspective, I reached out Friday to Jeff Shesol, the Supreme Court historian and author of Supreme Power: Franklin Roosevelt vs. The Supreme Court, a trenchant look at another Democratic president’s struggle with a deeply conservative Supreme Court bent on rolling back progressive programs. The email interview was lightly edited for length and clarity.

Cohen: Is there any precedent for such an episode in the history of the court? How does this compare to prior scandals at the court?

Shesol: Well, my first reaction is that if you pitched this storyline as a scripted series on Netflix, you’d be told it’s too over-the-top to be credible. Yet here we are.

Second, on the grounds that it’s more useful than anything I might say at present, here is a piece I wrote for the NYT back in 2011 on the “extrajudicial” activities of Thomas, Alito, and others. They’re even more brazen today, if only because they have never faced any consequences (other than the opprobrium of the left and the mainstream media, opprobrium they welcome) for making political statements to politically minded crowds. You and I can write as many mean articles about them as we’d like, but short of impeachment, they’re untouchable and they revel in it.

Third, no, I can’t think of a single precedent for this sort of episode. Until Ginni Thomas, the spouses of Supreme Court justices (past and present) have understood that they should avoid activities that might reflect poorly, by association, on the reputation of the justice or might call into question the impartiality of the justice. But as recent reporting has made clear, Ginni Thomas is not merely indifferent to such expectations or unmindful of the old guardrails; she is a zealot, an ideological warrior, and sees herself as waging the same fight to the same ends that her husband is waging from the bench. There is no precedent for any of this.

Neither is there any real answer to it. In a very real sense, Clarence and Ginni Thomas are answerable only to Clarence and Ginni Thomas. The Trump Administration gave us all a hard lesson in how few actual rules bind the behavior of our national leaders, and how much depends on their good judgment and self-restraint.