Ginni Thomas, the self-styled “culture warrior” and extreme rightwing activist, has links to more than half of the anti-abortion groups and individuals who lobbied her husband Clarence Thomas and his fellow US supreme court justices ahead of their historic decision to eradicate a woman’s right to terminate a pregnancy.
A new analysis of the written legal arguments, or “amicus briefs”, used to lobby the justices as they deliberated over abortion underlines the extent to which Clarence Thomas’s wife was intertwined with this vast pressure campaign.
The survey found that 51% of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas, raising concerns about a possible conflict of interest at the highest levels of the US judiciary.
The six-to-three rightwing majority of the court, supercharged by Donald Trump’s three appointed conservative justices, in June overthrew the constitutional right to an abortion. Clarence Thomas was among the six who voted for the hotly contested ruling, Dobbs v Jackson.
The ruling was one of the most consequential in the supreme court’s 233-year history. It has triggered the lightning spread of partial or total abortion bans across Republican-controlled states, affecting almost one in three women aged 15 to 44.
The Dobbs case, brought by Mississippi which sought to ban abortions after 15 weeks of pregnancy, attracted an almost unprecedented 130 amicus briefs from both sides of the legal argument. Of those, 74 were filed in favour of overturning the right to an abortion, enshrined in 1973 in Roe v Wade.
In turn, the new analysis shows that 38 of the 74 anti-abortion amicus briefs – 51% – were produced by entities and individuals with links to Ginni Thomas. They included rightwing groups, religious interests, prominent conservative individuals and lawyers.
“The Thomases are normalizing the prospect of too close an association between the supreme court and those who litigate before it,” said Melissa Murray, a law professor at New York University and co-host of the Strict Scrutiny podcast. “This isn’t the first time that Mrs Thomas has had dealings with those who come before the court and seek her husband’s vote.”
The revelation that there is substantial overlap between Ginni Thomas and the anti-abortion lobbying effort focused on her husband and the other conservative justices will intensify the growing sense of unease surrounding her hyper-energetic conservative activism. In recent years she has placed herself in the thick of some of the most bitterly contested political controversies that have come – or could come – before the court.
Earlier this year, the New Yorker published an investigation into the mounting evidence of possible conflicts of interest under the headline: ‘Is Ginni Thomas a threat to the supreme court?’
Thomas has been dubbed a “radical insurrectionist” for her role in backing Trump’s attempt to subvert the 2020 presidential election. Yet her husband has refused to recuse himself from cases relating to the insurrection, including one in January in which he became the only justice to dissent in an 8-1 decision over allowing hundreds of documents held by the National Archives to be reviewed by the House committee investigating the January 6 storming of the US Capitol.
Five weeks after that decision, it was revealed that leading up to January 6 Ginni Thomas exchanged 29 text messages with Trump’s White House chief of staff, Mark Meadows, urging him to block Joe Biden’s victory. It is very possible that those text messages were among the documents that the committee had been seeking, with Clarence Thomas the sole justice opposing disclosure.
The January 6 committee has said it wants to interview Ginni Thomas over her anti-democratic antics around the 2020 election. Last week the Washington Post revealed that she applied pressure on lawmakers in Wisconsin to block Biden’s win, having previously done the same in Arizona.
The analysis of the amicus briefs was carried out by Advance Democracy Inc, a non-partisan organization specializing in public-interest research and investigations. It shared its findings with the Guardian.
They show an intricate web of connections between many of the most influential groups and figures on the conservative hard right, with Ginni Thomas at the centre of it. Several of the links run through her consultancy, Liberty Consulting, which she set up in 2010 and which brags that it can “give access to any door in Washington”.
Another major route is through the Council for National Policy (CNP), a secretive Christian conservative networking group that the New York Times described as a “little-known club of a few hundred of the most powerful conservatives in the country”. The binding mission of the members is “limited government, strong national defense, and support for traditional western values”.
Ginni Thomas is listed as a board director of the lobbying arm of the group, CNP Action, in a 2020 tax filing obtained by the investigative watchdog Documented. In a speech to a CNP event in 2019 she described her role within the conservative movement as that of “a convenor – I find the talent and I put them in the room and have them talk to one another”.
A leaked CNP directory from this year lists as Thomas’s fellow members several prominent conservatives involved in filing amicus briefs to the supreme court in the abortion case. They include Marjorie Dannenfelser, president of the anti-abortion group Susan B Anthony List, who led a discussion at a CNP conference in February titled: After Roe, Then What?
Leonard Leo, the founder of the rightwing Federalist Society, with which Clarence Thomas is intimately associated, sits on the board of the Ethics and Public Policy Center, which filed an amicus brief. Leo was arguably the key strategist behind Trump’s packing of the supreme court to obtain its current supermajority; he shares CNP membership with Ginni Thomas and is a close collaborator of hers.
Other CNP members who have been involved in filing amicus briefs in the abortion case include: Jay Sekulow, Trump’s former lawyer at his first impeachment trial, who is chief counsel for the American Center for Law & Justice; David Nammo of the Christian Legal Society; Tony Perkins, president of the anti-abortion Family Research Council; Margaret Hartshorn, chair of Heartbeat International; and many more.
There are several other overlapping connections to the amicus briefs through separate networks such as Groundswell, a conservative advocacy group of which Ginni Thomas described herself as chairman in 2019. Groundswell was formed in 2013 to foment “a 30-front war seeking to fundamentally transform the nation”.
John Eastman, the conservative lawyer who is heavily implicated in the effort to block certification of Biden’s presidential victory, filed an amicus brief in the abortion case on behalf of the Claremont Institute’s center for constitutional jurisprudence, of which he was founding director. Eastman acted as law clerk to Justice Thomas in 1996 and has been described by the New York Times as a “close friend” of Clarence and Ginni.
Thomas herself has denied any conflict of interest between her activism and her husband’s jurisprudence. She told the Washington Free Beacon earlier this year: “We have our own separate careers, and our own ideas and opinions too. Clarence doesn’t discuss his work with me, and I don’t involve him in my work.”
Whether that is true is perhaps a moot point, given that the mere appearance of conflict of interest can in itself damage an institution’s reputation. Already, the supreme court is viewed unfavourably by 44% of the American people according to a Pew Research Center poll, with only 16% thinking they do an excellent or good job keeping their personal political views out of their decisions.
“The supreme court is unlike any other branch because it only has its legitimacy to make the public adhere to what it does. Lose that and the court loses the kind of institutional pull that makes the law come together and bind us,” Murray said.
Unlike all other federal judges in lower appeals and district courts who are obliged to recuse themselves in cases of potential conflict of interest involving their spouses, the nine justices of the supreme court are entirely unfettered by any code of judicial ethics. They in effect police themselves.
Every year Clarence Thomas has to file a financial disclosure, but the detail given is minimal. He lists under his spouse’s income “Liberty Consulting, Inc – salary and benefits”, but does not reveal her clients or her board positions on groups such as CNP or Groundswell.
The lack of controls have led to a rising chorus calling for reform. “At the very least the justices need to adopt a formal code of conduct that they commit to following,” said Gabe Roth, executive director of the non-partisan group Fix the Court. “That code would take on board potential conflicts of interests involving their spouses.”
Ginni Thomas’s ties with groups responsible for the whirlwind lobbying campaign over abortion could have serious ramifications in future cases that come before the court. Clarence Thomas made it clear in his concurring opinion in Dobbs that he intends to use exactly the same arguments that were deployed in overthrowing Roe v Wade to challenge the constitutional right to same-sex marriage, same-sex relations and contraception.
Many of the interests to which Ginni Thomas was connected who filed anti-abortion amicus briefs have a parallel track record of anti-LGBT agitating. The founder of CNP, Tim LaHaye, was an evangelical Christian minister and a virulent homophobe.
His 1978 book The Unhappy Gays depicted gay people as “militant, organized” and “vile”. “Homosexuality is a blight on humanity,” he wrote. “Many parents would prefer the death of their child to his adopting the unhappy wretchedness of homosexuality.”
