Ethics Central: What Limits Apply to the Political Activities of a Justice's Spouse?

Abstract

When Mrs. Virginia Thomas, wife of Supreme Court justice Clarence Thomas, launched a new non-profit organization called Liberty Central 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. This essay endeavors to provide a much more comprehensive answer to both of these questions. By their text, the relevant codes of judicial conduct are limited 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 (although there is no requirement to be separate from other activities that are civic and educational but not political). Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the essay identifies the relevant standard and outlines a framework for evaluating individual cases.