Ginni Thomas is not the first controversial wife of a Supreme Court justice: author

Some critics of U.S. Supreme Court Justice Clarence Thomas and his equally far-right wife, GOP activist Ginni Thomas, have been arguing that her activism presents a conflict of interest for Justice Thomas — and that he should either resign or be impeached. That is most unlikely to happen. But in the past, a High Court justice did resign because of a controversy. And the last time that happened, author James D. Robenalt explains in an article published by the Washington Post on January 26, the justice was a liberal Democrat.

That justice was Abe Fortas, nominated by President Lyndon B. Johnson in 1965 and confirmed by the U.S. Senate that year. Fortas resigned in 1969, when allies of President Richard Nixon aggressively investigated Fortas’ ties to financier Louis Wolfson — and argued that he was guilty of major conflicts of interest.

In 1968, the year in which Nixon was elected president and defeated Democratic nominee Hubert Humphrey, LBJ hoped to elevate Fortas to Supreme Court chief justice — a position held at the time by Justice Earl Warren. But not only did Fortas not move into the chief justice position — he ended up leaving the High Court altogether.

“Fortas withdrew his name from consideration on October 2, 1968, when pro-Fortas senators could not muster enough votes to overcome the filibuster,” Robenalt recalls. “Nixon would pick the next chief justice of the United States. But Nixon was just getting started. The Justice Department, led by John Mitchell, continued to investigate Fortas. It uncovered evidence that Fortas had accepted a $20,000 retainer to serve on the board of a charitable foundation controlled by Louis Wolfson, a financier who was about to be indicted and later imprisoned for the sale of unregistered stock.”

Robenalt continues, “Fortas returned the money, but there was evidence that the offer had been for an annual retainer. Wolfson even asked Fortas to intercede on his behalf, along with Johnson, to ask Nixon to grant him a pardon once convicted. There was little evidence that Fortas mediated in any way on behalf of Wolfson — there never seemed to be a quid pro quo.”

Fortas, Robenalt notes, “resisted resignation until Mitchell played his ace in the hole” — and that ace in the hole was the U.S. Department of Justice reopening “an old investigation into Fortas’ wife, Carolyn Agger.”

“To increase pressure on Fortas,” Robenalt explains, “the Justice Department convened a grand jury to determine whether Agger had engaged in obstruction of justice by deliberately withholding documents relevant to a price-fixing case that were allegedly found in her office safe. The potential felony charges against his wife broke the stalemate. Warren convinced Fortas to resign. The grand jury looking into allegations of wrongdoing by Agger went away.”

Many years later, the wife of a Supreme Court justice who is under scrutiny is Ginni Thomas — who was the subject of some stellar reporting by The New Yorker’s Jane Mayer in an article published on January 21. Mayer, true to form, really dug deeply into the subject matter — offering elaborate details on Ginni Thomas’ activism, including her connections to former President Donald Trump’s Stop the Steal campaign and her willingness to promote Trump’s Big Lie and false, totally debunked claims of election fraud.

Nixon and his allies, from Mitchell to Henry Kissinger, were considered arch-conservative in their day. But in retrospect, those Nixon Republicans of the late 1960s and 1970s seem moderate compared to Ginni Thomas and her MAGA ilk.

In fact, Watergate prosecutor Jill Wine-Banks has said that Nixon’s scandals pale in comparison to the actions of MAGA Republicans.

Mayer reported, “Many Americans first became aware of Ginni Thomas’s activism on January 6, 2021. That morning, before the Stop the Steal rally in Washington, D.C., turned into an assault on the Capitol resulting in the deaths of at least five people, she cheered on the supporters of President Donald Trump who had gathered to overturn Biden’s election. In a Facebook post that went viral, she linked to a news item about the protest, writing, ‘LOVE MAGA people!!!!’”

In response to Mayer’s reporting, Robenalt observes, The New Republic’s Michael Tomasky wrote that “in a sane world,” Mayer’s article “would set off a series of events that would lead to her husband Clarence Thomas’s impeachment and removal from the Supreme Court.”

But again, that is unlikely to happen — although it is troubling that the wife of a Supreme Court justice is a far-right conspiracy theorist who has been promoting insurrectionists who don’t respect the peaceful transfer of presidential power.

Regardless, the chances of Justice Thomas resigning or being impeached because of his wife are slim and none.

Robenalt writes, “With the shoe on the other foot, would Republicans join Democrats in any effort to impeach Justice Thomas or force him out? If partisan politics makes it a long shot, then the lessons of history make it a virtual impossibility. The story of Fortas and Nixon shows just how long a tail Supreme Court appointments — and resignations — can have.”