No, Justice Clarence Thomas Doesn’t Have To Recuse Because His Wife Has Political Opinions

Justice Clarence Thomas and his wife Ginni Thomas continue to expose the left’s double standards and downright gaslighting on Supreme Court ethics and marriages. In 2022, it’s astonishing to read and hear that Justice Thomas must recuse himself from cases because of his wife’s views on the 2020 election.

After she was interviewed by the Jan. 6 Committee, many on the left lost their minds because Ginni Thomas had concerns that there were fraud and irregularities in the 2020 election. Many claimed that because of this her husband must recuse from any case on this topic or any topic on which she has opined.

The corporate media and leftist hypocrisy is on full display, as there is a celebrated case on which they took exactly the opposite view. But back then it involved an extremely left-wing federal judge refusing to recuse from a case even though his equally left-wing wife publicly opined on the case.

That judge’s wife’s organization had even filed an amicus brief in the litigation. Several judicial ethics professors filed a brief supporting this decision and implied you would be a sexist pig if you thought otherwise.

When the Shoe Was on the Left Foot

In 2011, Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit refused to recuse from a case on appeal regarding a challenge to Proposition 8, the same-sex marriage ban to the California constitution. There was great outrage at this amendment from many groups, including the ACLU of Southern California (ACLU-SC).

This group’s leader, Ramona Ripston, vocally opposed this law. The ACLU-SC also joined two amicus briefs in the district court arguing that this amendment violated the U.S. Constitution. At the time, Ripston was married to Judge Reinhardt.

When the case came up on appeal before Judge Reinhardt, he refused to recuse. His opinion setting forth his reasons should be read aloud, and then read again, by every critic who believes that Justice Thomas must recuse himself because of his wife’s views.

Here are some excerpts from his opinion: “[M]y wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. … It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. … The views are hers, not mine, and I do not in any way condition my opinions on the positions she takes regarding any issues.”

Applying the legal standard for recusal, Judge Reinhardt wrote, “My wife has no ‘interest’ in the outcome of this case that might be substantially affected by its outcome, over and beyond the interest of any American with a strong view concerning the social issues that confront this nation.” Judge Reinhardt then ruled exactly as his wife and her organization advocated, striking down the same-sex marriage ban amendment.

Five judicial ethics experts, including Professor Stephen Gillers, filed a brief in the U.S. Supreme Court supporting this decision. Here are some excerpts.

In a case about marriage, Judge Reinhardt is faulted in effect for his own marriage. Amici claim that he is disqualified not because of his own actions or views but rather those of his spouse. … A century ago, notions like those advanced against Judge Reinhardt might have resonated (although wrongfully so). In this day and age, however, a spouse`s views and actions, however passionately held and discharged, are not imputed to her spouse, and Judge Reinhardt is not presumed to be the reservoir and carrier of his wife`s beliefs.

That the ACLU is involved and interested in Proposition 8, and hence in the lower court proceedings that led to this case, is not a surprise. This does not, however, automatically equate with Ms. Ripston having an ‘interest’ in the case beyond endorsing an outcome favoring equality.

Amici nonetheless imply that Ms. Ripston`s views should be imputed to her spouse, Judge Reinhardt. The law is to the contrary. We are long past the day when a wife`s opinions are assumed to be the same as her husband’s, and in which spousal views and activity are categorically imputed to one’s spouse. No authority requires a judge to recuse based alone on the opinions of his or her spouse; only an ‘outmoded conception of the relationship between spouses’ would hold otherwise.

Judge Reinhardt, in denying the motion for his recusal, correctly observed that his wife ‘has the right to perform her professional duties without regard to whatever my views may be’ just as he ‘should do the same without regard to hers.’

Ms. Ripston`s opinions, views, and public pronouncements of support for the district court decision below do not trigger any reasonable basis to question Judge Reinhardt’s ability to honor his oath of office. A contrary outcome would deem a judge`s spouse unable to hold most any position of advocacy, creating what amounts to a disabling marriage penalty.

In contrast to Ginni Thomas, Ripston’s organization joined briefs in this litigation. Therefore, she was part of the litigation effort to strike down this amendment. Ginni has never been part of any litigation effort. And it’s ludicrous to claim that texting Mark Meadows with suggestions on lawyers or inviting John Eastman to brief her group on his litigation makes Thomas a part of the “litigation team.”

Clarence Thomas Can and Does Think for Himself

Ginni Thomas had every right to express her views on this topic or any other topic. Consistent with the law, Justice Thomas has acted properly in not recusing from any case related to a topic on which his wife has expressed her views. Likewise, Judge Reinhardt was not required to recuse in the above case because his wife did not appear before his court as a party or a lawyer and did not have a legal interest in the case as defined in the law.

The left is using every tactic to attack Justice Thomas, even if it means adopting repugnant and sexist views straight out of the Middle Ages. The unhinged nature of these smears also exposes the left’s racism, with their paternalistic views that a black man is dependent on his white wife for his thoughts.

These attacks are all despicable. There is no reason for Justice Thomas, or any judge, to ever recuse from a case based on the views of his spouse. And it is time for the smearing of the Thomases to end.

This author is representing Ginni Thomas in the Jan. 6 Committee proceedings.

Mark Paoletta served as a lawyer in the George H.W. Bush White House Counsel’s office and worked on the confirmation of Justice Thomas. He is a senior fellow at Center for Renewing America, and partner at Schaerr Jaffe.

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