A recent spate of articles (including this one) highlights the role that Virginia Thomas, wife of SCOTUS Justice Clarence Thomas, is playing as a leader of a "tea party." It's tempting to use this story as an occasion to take some shots at Justice Thomas and the right more broadly. E.g., I COULD ridicule the notion that President Obama is pursuing what Ms. Thomas calls a "hard-left agenda." If I were in such a mood, I might speculate as follows: Perhaps Ms. Thomas thinks Obama has such an agenda because he is following the lead of the old Soviet Union by escalating military operations in Afghanistan. But I'll resist the temptation.
Instead, I want to ask the core question raised here: What are the limits on political activities by the spouses of judges? As Ms. Thomas correctly notes, PA Governor Ed Rendell is obviously allowed to engage in political activity--all the time--notwithstanding his marriage to a federal appellate judge. Nor are such connections unique in the world of working couples. Ninth Circuit Judge Stephen Reinhardt (for whom I was a law clerk 20 years ago) is married to longtime Executive Director of the ACLU of Southern California, Ramona Ripston. These marriages lead to recusals in some cases, but in my view, it's almost silly to worry that they will otherwise lead to conflicts or the appearance of impropriety. As I said when I (somewhat weakly) defended Justice Scalia's non-recusal in the wake of his hunting expedition with then-VP Cheney, we have much less reason to worry that friends (or by extension, spouses) will whisper in the ears of judges and Justices than we have to worry that the judges and Justices have pre-formed ideological dispositions.
Does that mean that spouses of judges and Justices should feel free to do whatever they like in politics? Not necessarily. One concern arguably raised by the activities of Virginia Thomas but not those of Ed Rendell or Ramona Ripston is that Ms. Thomas may be exploiting her connection to a prominent jurist. Rendell and Ripston have power bases that are completely independent of their spouses. It's hard to say whether that is true of Ms. Thomas; certainly the attention that has focused on her tea party activity derives from her connection to her husband. Still, I would give her the benefit of the doubt. It's not at all clear that she invited the publicity of her tea party involvement. Nor am I aware that she has substantially benefited in her career from her husband's position: She has worked in positions of responsibility in conservative causes on the Hill over the last two decades, presumably because she is good at what she does. In any event, complete independence is not really the right benchmark. Hillary Clinton gained national prominence as a result of her husband's political accomplishments but as an elected and now an appointed official she has developed her own power base. If Dick Armey first heard of Virginia Thomas because she was married to Clarence Thomas, that doesn't taint her continued involvement in right-wing political causes.
In the end, what's troubling about Ms. Thomas's involvement in the tea party movement is what it may say about the extremity of her husband's views. To be sure, many spouses disagree about political issues. Mary Matalin and James Carville are only the most colorful. Still, there doesn't appear to be a lot of daylight between the world views of Virginia and Clarence Thomas. VT says she is a fan of Rush Limbaugh and "intrigued" by Glenn Beck. (Well, who isn't?) Meanwhile, in 1994 Justice Thomas presided at Limbaugh's third wedding ceremony, which was performed in the Thomas home. Is there anything unethical in any of that? No. Disturbing, sure, but not unethical.