Senate Democrat urges Justice Thomas’ recusal in religious liberty disputes after wife’s comments

A top Senate Democrat is calling for conservative Supreme Court Justice Clarence Thomas to recuse himself from any case associated with the religious liberty legal group, First Liberty Institute.

The recusal call comes after an outlet reported that Justice Thomas’ wife, Ginni Thomas, had thanked the leader of the organization for opposing Supreme Court reforms.

“You guys have filled the sails of many judges. Can I just tell you, thank you so, so, so much,” she reportedly wrote in all caps in an email.

“The reported comments by Ginni Thomas are deeply problematic,” said Senate Judiciary Committee Chairman Richard J. Durbin, Illinois Democrat. “She’s testified before Congress that she and Justice Thomas do not discuss each other’s work. That defense now rings hollow. Whether she’s inflating her knowledge of judges’ views on ethics reform or telling the truth, her apparent comments on behalf of judicial officers create a clear appearance of impropriety for Justice Thomas. He must recuse himself from any case involving First Liberty Institute.” 

ProPublica reported last week that the leader of First Liberty Institute, Kelly Shackelford, touted Mrs. Thomas’ email on a call with his donors. 

The comments come after Democrats for months have been pushing for Congress to pass legislation imposing a code of ethics on the Supreme Court. 

First Liberty has had major litigation — and victories — before the court in recent years involving a ruling in 2023 that sided with a post-office carrier protesting work on the Sabbath, and a 2022 legal battle between a high school football coach and his school district over praying on the 50-yard line.

Josh Blackman, professor at South Texas College of Law, recently said in a blog post on The Volokh Conspiracy that nothing suggests that Justice Thomas was “beholden” to First Liberty from his wife’s comments.

“In June 2008 Justice Ginsburg spoke at an ACLU event and praised the organization, even as ACLU cases were pending. No recusal,” Mr. Blackman noted, referencing the late liberal Justice Ruth Bader Ginsburg.

Hiram Sasser, executive general counsel for  First Liberty Institute, said that Mr. Durbin is upset that the spouse of a justice thanked the organization for advocating for judicial independence.

“We may not all agree on the outcome of any particular case, but First Liberty will never back down from fighting for the same cause as Justice Ginsburg – judicial independence.  Senator Durbin should listen to those who Justice Ginsburg described as ‘vocal defenders of the Judiciary – intelligent voices that do not divide along Party lines,’”  Mr. Sasser said.

This is not the first time Mr. Durbin has called for Justice Thomas to recuse from cases. Last September, Mr. Durbin urged Justice Thomas to recuse from any case related to executive overreach.

And more recently, Senate Democrats had called for Justice Thomas to recuse from any election-related cases involving Jan. 6 defendants or former President Trump over Mrs. Thomas attending the Jan. 6 Stop the Steal rally in support of the former president.

The George H.W. Bush appointee refused the calls to recuse.

Justice Thomas’ wife left the Jan. 6 rally before violence broke out at the U.S. Capitol.

Last year, ProPublica published a series of articles critical of the justices — mainly Justice Thomas — over accepting hospitality without disclosures.

At the time, there was no requirement to disclose certain hospitality and gifts for the justices, but that changed in 2023 after the Judicial Conference updated its rules, extending them to the high court.