Justice Thomas ruled on election cases.  Should his wife’s texts have precluded him?  The nature of the text messages was enough to require his recusal.  But, the Supreme Court has traditionally left such decisions to the discretion of the justice in question.  Herein lies the problem.  Judges cannot be left to judge themselves—it’s human nature for anyone to deny his or her bias.  This is why we so desperately need all judges—and certainly Supreme Court judges—to be regulated by a neutral third party.  But will it ever happen?  I won’t hold my breath.

The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created—and the lack of a clear-cut remedy.  It is one thing for the spouse of a Supreme Court justice to express political views, even ones shot through with wild conspiracy theories.  That may not by itself require the justice’s recusal from cases touching on those views.

But the text messages from Ms. Thomas, a longtime conservative activist who goes by Ginni, revealed something quite different and deeply troubling, experts said.  The text messages between Ms. Thomas and Mark Meadows, President Trump’s chief of staff, sent during and just after the fraught weeks between the 2020 presidential election and the January 6th attack on the Capitol, demonstrated that she was an active participant in shaping the legal effort to overturn the election.

When your spouse is conversing with people who have some control over litigation to challenge an election, you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.  But Justice Thomas did participate in a ruling in January on an emergency application from Mr. Trump asking the court to block release of White House records concerning the attack on the Capitol.  The court rejected the request, in a sharp rebuke to the former president.  Only Justice Thomas noted a dissent, giving no reasons.

He also participated in the court’s consideration of whether to hear a related appeal, one in which Mr. Meadows filed an amicus brief saying that “the outcome of this case will bear directly” on his own efforts to shield records from the House committee investigating the attacks beyond those he had provided.  The Supreme Court last month refused to hear the case, without noted dissent.  There was no indication that Justice Thomas had recused himself.

In December 2020, around the time of the text messages, Justice Thomas participated in a ruling on an audacious lawsuit by Texas asking the court to throw out the election results in four battleground states.  The court rejected the request, with Justices Thomas and Samuel A. Alito Jr. issuing a brief statement suggesting the majority had acted too soon in shutting the case down.  In February 2021, Justice Thomas addressed election fraud in a dissent from the Supreme Court’s decision to turn away a challenge to Pennsylvania’s voting procedures.

All federal judges, including Supreme Court justices, are subject to a federal law on recusal.  The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  Judging by the nature of the text messages and the uproar over them, that provision alone is enough to require Justice Thomas’s recusal, legal experts said.

There may be questions about the constitutionality of the recusal law, as least as it applies to Supreme Court justices.  In his 2011 annual report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. wrote that “the limits of Congress’s power to require recusal have never been tested.”  It is past time for this issue to come before the Supreme Court and for Congress to enact checks and balances on judges’ power.