Search EUA
Trump’s eligibility and Thomas’s recusal raise the same root question: When it comes to efforts to overturn the legitimate results of a presidential election, how far is too far?
On the surface, there is at least one important distinction between those two questions.
The Anderson case centers on Trump’s removal from the ballot in Colorado due to prohibitions established in the 14th Amendment. Ratified in the years after the Civil War, the amendment bars service “as an officer of the United States” for anyone who “engaged in insurrection or rebellion against the same.”
The immediate intent of the amendment was to block former members of the Confederacy from service in the federal government. But Trump’s efforts to upend his loss in the 2020 presidential contest — from attempting to derail vote certification to facilitating the submission of invalid electoral votes to fomenting the Capitol riot — have raised questions about whether he similarly triggered that violation. The Colorado Supreme Court said he did; the U.S. Supreme Court is likely to offer its own opinion.
You can probably see how this is nebulous. Trump did not literally raise an army intent on seizing control of D.C. as if he were a modern-day Robert E. Lee. But he did try fervently to seize an illegitimate second term in office with the effect that a mass of people swarmed into the Capitol and blocked the finalization of Joe Biden’s election, however temporarily. Partisans see a clearly drawn line here, with Trump obviously on one side of the 14th Amendment’s prohibitions or the other. But the language and Trump’s actions do not align quite that neatly.
In the case of Clarence Thomas, the line itself is nebulous. There are obviously cases in which a judge should not participate in decision-making; if, for example, the judge’s child were facing a criminal trial. But even under the Supreme Court’s newly articulated code of conduct, recusal decisions by justices involve obvious judgment calls.
“A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned,” that code states, offering some examples: if the justice has “a personal bias or prejudice concerning a party,” for example, or has family that is party to a proceeding. Guidelines such as these are a bit like peering into a fog-shrouded forest: The further you look, the blurrier things get.
The question for Thomas in the Anderson case is whether the advocacy of his wife, Virginia, on Trump’s behalf in the weeks after the 2020 election should trigger recusal. Virginia (usually known as Ginni) Thomas was enthusiastic about the idea that Biden’s victory was invalid and that Trump should retain power. She used an online tool to send emails to Arizona legislators encouraging them to reject their state’s certified results. She sent text messages to Trump’s chief of staff, Mark Meadows, encouraging him to help Trump “stand firm” against “the greatest Heist of our History.” She also passed along false theories about purported fraud. Ginni Thomas was also at Trump’s speech on Jan. 6, 2021, before many in the crowd moved toward the Capitol.
Does this cross that blurry line of recusal? Given that the code of conduct was presented to the public well after these questions were raised, the specific examples offered carve out exclusion that doesn’t obviously apply to Ginni Thomas. But what about the top-line ban, the one that calls for recusal if “the Justice’s impartiality might reasonably be questioned”?
The University of Massachusetts at Amherst released polling this week that specifically presented respondents with the issue at hand.
“According to reports, Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, emailed state legislators in a number of states asking them to overturn the results of the 2020 election and also urged former President Trump’s chief of staff, Mark Meadows, to continue efforts to overturn the 2020 election,” the question read. “Given this, do you think that Justice Clarence Thomas should or should not remove himself from cases related to the 2020 election?”
Nearly two-thirds of respondents said he “definitely” or “probably” should, including two-thirds of independents and even one-third of Republicans.
That suggests that Thomas’s impartiality is reasonably being questioned. We should not, however, expect that Thomas would therefore recuse, given what we know about Thomas.
Again, in neither case do the available facts and the established guidelines overlap cleanly. Trump absolutely attempted to overturn the 2020 election results and pushed legal limits — if not crossed them — to do so. He is why the Capitol riot happened. But is that obviously “engag[ing] in insurrection or rebellion”?
Ginni Thomas clearly engaged in the same effort, though not to the same degree or effect. She did what she could to aid Trump’s attempts to retain power and now her husband is being asked to adjudicate those attempts. Does that obviously demand that Justice Thomas opt out of the decision-making?
One of the central lessons of the Trump era of American politics is that our rules and boundaries depend to a non-insignificant degree on actors who believe those rules and boundaries are valid and should be respected. If, on the other hand, you have individuals who are interested in subverting the rules to advance their own power or interests, we collapse into the realm of lawyerly word-and-meaning-parsing. It is a realm of fog and shadows.
The broader question here is the more important one: Should a president and his supporters be allowed to attempt to seize power without facing significant ramifications? But we already have an obvious answer to that question.
