Former President Donald Trump’s strained attempt to pull the U.S. Supreme Court into his fight over classified documents has highlighted, once again, something even more outrageous: Justice Clarence Thomas’ continuing refusal to recuse himself from cases involving Trump despite the justice’s marriage to one of Trump’s most vocal, prominent and extremist followers.
At issue is the bizarre tug-of-war between Trump and the Justice Department over classified U.S. government documents that Trump took to his Florida home and refused to give back until a court-ordered search seized them. Trump has offered shifting rationales for his claim to them, including the novel argument that he declassified them without actually going through any kind of declassification process. Many of the documents are now under review by a lower-court-appointed special master to determine if Trump has any legitimate claim to them.
But an appellate court has ruled that review can’t include some of the most sensitive classified documents. Trump is asking the Supreme Court for an emergency stay to reverse that part of the appellate opinion — to rule, essentially, that even highly classified government secrets should be reviewed to determine if Trump can keep storing them in his basement even though he apparently has no legal right to possess them at all.
It’s a procedural coincidence that Trump’s request is directed specifically at Thomas, his staunchest ally on the bench. Requests to the court are divided among the justices by geographical area, and Trump’s case happens to fall within Thomas’ jurisdiction. But it should provide a useful test of whether Thomas is still concerned with even the appearance of even-handedness regarding Trump. The signs aren’t good.
In January, Thomas cast the sole vote in support of Trump’s attempt to block Congress from seeing records regarding the Jan. 6, 2021, attack on the Capitol. It later came out that Thomas’ wife, Ginni Thomas, a prominent conservative activist, had inundated the administration with texts encouraging Trump’s attempts to overturn the 2020 election.
That and other examples of Ginni Thomas’ MAGA fanaticism led to calls for Justice Thomas to recuse himself from future cases involving Trump, but he has declined to. Under current rules, no one can make him; no previous court apparently envisioned a sitting justice who was both married to an outspoken ideologue and unwilling to responsibly take himself off cases in which a clear conflict of interest was evident.
Thomas will now have the power to decide what happens next with Trump’s request. Experts say the likeliest course in such cases is that he will refer it to the full court. But in theory, he could simply grant the requested emergency order. Whatever he does, only Thomas and his wife will know how much of it was based on jurisprudence, and how much of it was right-wing pillow talk.