When a Justice’s Spouse Engages in Political Activity

Posted on Categories Legal Ethics, Legal Scholarship, U.S. Supreme Court

When Mrs. Virginia Thomas, wife of Supreme Court justice Clarence Thomas, launched a new non-profit organization called Liberty Central earlier this spring, the announcement prompted a firestorm of media coverage. The Los Angeles Times, Washington Post, and numerous other news outlets ran stories discussing the possible ethical issues that may arise. The stories focused on two particular questions: to what extent may the spouses of Supreme Court justices engage in political activity, and when may Justice Thomas’s recusal be necessary if a donor to Liberty Central comes before the Court? Legal ethics experts quoted in the news stories offered brief answers on both counts.

In a short paper recently posted to SSRN, I have endeavored to provide a comprehensive answer to both of these questions. The first conclusion was straightforward: the relevant codes of judicial conduct are limited by their texts to judges – they have no power over spouses. Moreover, numerous advisory opinions confirm the right of judicial spouses to engage in politics. However, a judge must clearly separate himself from the political activity of his spouse.  Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the paper identifies the relevant standard and proposes a framework for evaluating cases that may arise in this circumstance. I conclude that Mrs. Thomas can fully pursue her new organization’s mission without compromising Justice Thomas’s role on the bench.

One thought on “When a Justice’s Spouse Engages in Political Activity”

  1. This assumes that a spouse never engages his or her partner in conversations about workplace politics. Except in matters of national security, this is an absurdity.

    My wife and I have been married sixty-two years. We talk openly about just about everything, and there are no secrets and no lies. Honesty is the cornerstone of our love and it is founded on trust. It could not be any other way.

    Matts Djos, Ph.D.

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