It's been two years since the insurrection at the Capitol, but it's not history yet for the American justice system.
Courts at all levels are still hearing cases related to the 2020 election and the attack at the Capitol — that includes the nation's highest court.
The Supreme Court has already had multiple cases brought before the bench, one including the release of President Trump's records and the records of Arizona Republican party chair Kelli Ward. Justice Clarence Thomas dissented in both cases.
So why is his dissent noteworthy?
His wife, Ginny, who is a longtime Republican activist, sent text messages to top Trump officials after the election and on the day of the insurrection. She also contacted 29 Arizona Republican lawmakers to overturn President Joe Biden's win in the state.
"When you accumulate all the things we know, and all the events and his decisions, and all the claims around it, it's not good for the court," said Cardozo Law School Constitutional Law Professor Michel Rosenfeld.
Ginny Thomas told the January 6th committee she never spoke to her husband about pending cases or issues she was working on, including challenging the 2020 election results.
"Are we to believe he's not aware of them now?" Los Angeles Times Washington Columnist Jackie Calmes said. "That a Supreme Court justice hasn't followed the news enough to know that his own wife, who by that point had had been called before the committee. So either he doesn't recognize that this is a conflict of interest, or he doesn't care."
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Ginny Thomas spouted QAnon conspiracy theories in text messages to then White House chief of Staff Mark Meadows, including that the Bidens would be tried for sedition for ballot fraud. She told Meadows she needed to have a conversation with her best friend. And in her interview with the Committee, told them the best friend she was referring to was her husband.
"This implies that she discusses these matters with Justice Thomas. And again, it increases the appearance of something unseemly. Now, she may very well discuss politics in general, perfectly fine," Rosenfeld said. "But, if she starts going into 'Well, what about getting new electors that are not the same ones that the Democrats appointed?' At what point does this make him unsuitable as a judge in that case?"
Many legal scholars expected Thomas to recuse himself in this situation. After all, it's not unusual to do so. Justice Stephen Breyer recused himself from cases related to ones his brother, Judge Charles Breyer, heard. Justice Elena Kagan recused herself from cases when she worked at the Solicitor General's office. And during a case relating to the Nixon impeachment, Justice William Rehnquist recused himself because of his work at the Nixon Justice Department.
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But there's no law or guidelines to force a justice to recuse themselves. There's no punishment the way there is for lower court judges. They simply police themselves.
"The Supreme Court, to be fair, is different in the sense that if a Supreme Court justice recuses him or herself, there's no one who can step in to make sure that the court has nine justices to hear a case," SCOTUSBlog founder Amy Howe said.
This really is unchartered territory for the Court. Many justices have spouses in the legal profession who have to avoid conflicts of interest in certain cases or even jobs, but never a political activist.
"One of Justice Thomas' former law clerks said, 'He does the law, she does the politics.' But, the line between law and politics can get blurry," Howe continued.
Rosenfeld says this could set a bad precedent for future justices.
"There may be a very conscientious justice that would have done the exact opposite of what Thomas did in this case," he said. "Or there could be a justice that says, 'Well, if Thomas didn't recuse himself in the case of his wife, I'm not going to recuse myself in X, Y or Z case.'"
And at a time where the approval rating for the Court is at an all-time low, these experts worry actions like this will sink public confidence even further.
"I think this is, arguably, a crisis for the court and a crisis of credibility," Calmes said.
