It's not illegal or even unethical for the wife of a Supreme Court justice to consort with those on the political fringe, but to borrow a phrase recently deployed by Chief Justice John Roberts, it's "very troubling."
Virginia Lamp Thomas has never made any secret of her affiliation with the right-wing of the Republican Party, nor has she hewed to the overly cautious side of the spectrum when it comes to refraining from activities that might cast her husband, Justice Clarence Thomas, in an inappropriately partisan light. She worked for the Heritage Foundation, and she found nothing unseemly about collecting résumés for potential appointees in the Bush administration during the contested 2000 presidential election, even as her husband voted to stop ballot counting in Bush v. Gore. Perhaps it's because Justice Thomas' record on the Supreme Court falls so far to the extreme right that his wife's unorthodox political affiliations cause little concern. No one thinks that Thomas needs pillow talk to convince him to adhere to strong right-wing principles. After all, this is the justice who accepted the invitation to officiate at the third wedding of his friend, Rush Limbaugh.
But the news that Virginia Lamp Thomas has created an organization to organize "citizen patriots" which appears to make common cause with the Tea Party movement should raise eyebrows. Her new organization, "Liberty Central" is, according to its Web site, an organization for "American patriots" who seek to "direct America's future course."
With its prominently placed endorsement from the national coordinators of the Tea Party patriots (with whom, according to the site, Liberty Central has commissioned a poll showing that "citizen activists" are misunderstood) and Thomas' recently announced belief that she has been "called to the front lines" with other Tea Party leaders "to preserve what has made America great," it's not a hard stretch to see that Mrs. Thomas has positioned herself as a Tea Party-affiliated leader.
On the group's site, Mrs. Thomas also declares herself "intrigued with Glenn Beck." This comment—an endorsement of a man whose incendiary and unintentionally comic antics have even divided Fox News executives—can only have been designed to appeal to farthest edges of the right-wing fringe, and suggests that Mrs. Thomas is engaged in deliberate political provocation.
Of course, Justice Thomas is not his wife. There is nothing that should technically prevent the wife of a judge from engaging in political activities. In fact, I applaud the decision of a judge's wife to reject the role of ceremonial help-mate and take up a robust career. Certainly Mrs. Thomas has full free speech rights guaranteed by the First Amendment. But there is such a thing as decorum, as we were reminded by the chief justice last week. And the launch of Mrs. Thomas' Liberty Central is, to say the least, indecorous.
But it's more than that. It's yet another issue that raises questions about how and when members of the Supreme Court should recuse themselves from cases in which their participation might undermine the appearance of the court's impartiality. Federal law calls for judges to recuse themselves from cases when their "impartiality might reasonably be questioned." This was a much-debated issue after the court's decision in Bush v. Gore. Justice Antonin Scalia's son, Eugene, was a partner in the law firm that represented George W. Bush; Mrs. Thomas was vetting potential Bush administration staff for the Heritage Foundation; and Justice Sandra Day O'Connor had reportedly made some election-night comments that suggested her distrust of the ballot counting in Florida. None of the justices recused themselves from the case.
Because Liberty Central will accept donations from individuals and corporations, and because it seems poised to stake out controversial positions on a variety of political and legal issues, Justice Thomas may well have to address the appearance of impartiality in cases that come before the court. Mrs. Thomas has suggested that raising the issue of the appearance of bias reflects "a different standard for conservatives." She noted that Pennsylvania's Democratic Gov. Ed Rendell's wife, Marjorie, is a federal appellate judge, and no widespread concerns have been expressed about whether his prominent political position creates an appearance of bias for his wife.
Moreover, Judge Rendell reportedly seeks guidance from the Committee on Codes of Conduct to help her decide when to recuse herself. By contrast, Supreme Court judges make decisions independently about whether to recuse themselves from cases. This is a fact we all remember well from Justice Scalia's 2003 refusal to recuse himself from a high-profile case in which then-Vice President Dick Cheney was the defendant, after it became known that he'd gone on a duck-hunting trip. In an unusual 21-page memorandum opinion, Justice Scalia belligerently defended his decision to stay on the case.
In most cases, justices on the court do not write opinions explaining their decision to hear a case. Even when they recuse themselves, the reasons why often remain a mystery. Lawyers arguing the case will simply note that a particular justice's chair is empty. Given the unilateral exercise of recusal decisionmaking by Supreme Court justices, their customary lack of explanation for the decision to remain on or withdraw from a case, and the fact that a recused Supreme Court justice cannot be replaced, Justice Thomas' position cannot be readily compared to that of Judge Rendell.
It's ironic, of course, that the revelations about Mrs. Thomas' newly launched group come in the same week that many have been debating the appropriateness of President Obama's criticism of the Supreme Court's decision in Citizens United during the State of the Union address. Justice Thomas himself has eschewed attendance at the State of the Union because the event is "too partisan." For some members of the court, what constitutes "partisan" is apparently in the eye of the beholder.
Sherrilyn A. Ifill is a regular contributor to The Root.
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