[cross-posted from The Faculty Lounge]
This article on The Daily Beast argues that Thomas may be recused because of some emails sent by his wife, but it is wrong.
It seems that Virginia Thomas has written some emails to a conservative listserv -- and leaked to the DB reporter -- expressing support for President Trump. In one, she wrote:
What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left's resistance efforts who are trying to make American ungovernable?
She went on to complain about the liberal group Daily Action, and asked for suggestion on setting up a comparable organization for activists who "want to join the fray on social media for Trump."
According to the Daily Beast story -- quoting Georgetown Prof. Heidi Li Feldman -- this might lead to sufficient grounds for "a non-frivolous disqualification motion." Feldman said that she was "taken aback" by Virginia Thomas's emails, and called them "pretty egregious." She also linked the email to Trump's executive order on immigration:
It's pretty clear that it's quite partisan and in context given the date of the email and that the tool is meant to rebut activity on the left -- what has the left been really active on? The executive orders. So minimally, I would say the author of the email is thinking of that executive action.
According to the Daily Beast reporter, Justice Thomas's recusal could therefore be required due to his wife's "apparent support for specific activism on specific issues that could come before the court."
I disagree. Virginia Thomas has been a Republican activist since before her husband was on the Supreme Court. She has worked at the Heritage Foundation, and she played a role in the Bush 43 transition. There is no rule or principle that constrains the political activities of judges' spouses. Marjorie Rendell (3d Circiut) was married to Ed Rendell when he was the governor of Pennsylvania; Stephen Reinhardt (9th Circuit) is married to Ramona Ripston, who was the executive director of the Southern California ACLU for almost 40 years (1972-2011), and Judge Reinhardt declined to recuse himself in at least one case where the ACLU had filed an amicus brief. In that light, there is nothing remotely egregious about Virginia Thomas's continuing work on behalf of President Trump.
It would be different if Ms. Thomas had played some sort of direct role in drafting or promulgating the EO, but that does not appear to be the case. Prof. Feldman's line of reasoning is far to attenuated, however, to implicate Ms. Thomas in the specific case. "What has the left really been active on?" she asks, but the answer is much more than the immigration order. Nor does the date of the email -- which was February 13 -- connect it specifically to the EO. Trump's order was issued on January 27, enjoined by the district court on February 4, and ruled upon by the 9th Circuit on February 9.
Ms. Thomas's email could just as easily have been referring to the confirmation vote on Attorney General Jefferson Sessions (February 7) or Treasury Secretary Steven Mnuchin (February 13), or the then-looming vote on the Labor Secretary nominee Andrew Puzder (since withdrawn). The most likely interpretation, however, is that Ms. Thomas was referring to the entire Trump agenda, rather than any particular aspect of it.
But even if Ms. Thomas had written to her allies specifically about the EO, that still would not be a sufficient basis for recusal under 28 U.S.C. 455 (a), which requires disqualification when the justice’s “impartiality might reasonably be questioned.” Simply stated, a judge or justice cannot be disqualified on the basis of a spouse’s general political activity. In the Twenty-First Century, it is just unreasonable to expect judicial spouses to keep their opinions to themselves or to refrain from working for causes in which they believe. It is consequently unreasonable to expect judges or justices to disqualify themselves from cases because they have ramifications for a spouse's political party.
Even if a motion to disqualify Justice Thomas would be non-frivolous, as Prof. Feldman says, it would still be futile. The Supreme Court practice is to refer all recusal motions to the affected justice, who then makes the decision himself or herself. Justice Thomas has already made it quite clear that he will sit on politically charged cases notwithstanding his wife's activism, the ACA case (NFIB v. Sebelius) being the prime example.