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Tea Party at the Supreme CourtGinni Thomas turns questions about her activism to her advantage.

By Emily BazelonUpdated Tuesday, March 16, 2010, at 6:37 PM ET

Read Dahlia Lithwick on how the justices express their politics outside of court.

Virginia Thomas has many ardent defenders. In fact, it's hard to find anyone who doesn't think that Ginni, as everyone calls the wife of Justice Clarence Thomas, has a perfect right to launch herself headlong into the Tea Party movement with the founding of her own group, Liberty Central Inc. As Thomas herself said, pointing out that the Supreme Court's ethics office had approved her new endeavor, "I did not give up my First Amendment rights when my husband became a justice of the Supreme Court."

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In the end, this has turned into the kind of roll-out Thomas couldn't have planned better. No one much noticed when Liberty Central opened shop in February. Now Thomas and her allies get lots of publicity as the champions of wife-activists who can righteously breathe fire at the left for hypocrisy. On its Web site, Liberty Central is thanking its supporters for the "many E-mails, calls, and tweets of support we've received in the last few days. We're overwhelmed by the magnitude of the response." Forging ahead, doubters be damned, is a stance perfectly tailored to the Washington role that Thomas has long played. She is part of a cadre of strong-minded, smart, skilled Republican women who run their own shows while rejecting the politics of all those other smart, strong-minded women who identify themselves as feminists. It's possible that however permissible, Thomas' latest choice of tactics for a cause she has long served isn't good for the court's institutional image. But never mind, because at the moment, all the dragon-breathing makes for a great show.

On Sunday, the Los Angeles Times offered itself up for this week's conservative blasting of the mainstream media with a story that ventured the hypothesis that Thomas' nonprofit "is likely to test notions of political impartiality for the court." The right immediately blasted the story as a hit job. Examples abound, but the flame-throwing award goes to Andy McCarthy on National Review's the Corner. Though he hasn't always been solicitous of the challenges active husbands pose to working women, he came to Thomas' aid for daring "to have your own career" (while finding an excuse to attack Justices Ruth Bader Ginsburg and Sonia Sotomayor, DoJ appointee Dawn Johnsen, and Justice Department lawyers who once represented Guantanamo detainees).

The media and the left, meanwhile, mostly confined themselves to a slight raise of the eyebrow. In NPR's docile story, ethics expert Steve Gillers opined that "the spouse of a judge can have a full political life and take positions." The Washington Post gave lots of space to describing Liberty Central in its own terms. (Amid the unassailable parts about fighting for liberty, the group pledges to fight "against the liberal Washington agenda.") Talking Points more amusingly showed the group using stock photos of smiling African-Americans and Asians to give it a sheen of minority support. Jeffrey Toobin says that Ginni Thomas is violating no code of ethics. So does our own Dahlia Lithwick.

Let's run through the judicial-ethics question. Justice Thomas wouldn't be permitted to found Liberty Central himself, but his wife is not him. In future cases, the justice will be expected to recuse himself from a case in which Liberty Central is a party or takes a position before the court. Since the conflict-of-interest rules for judges are largely about avoiding the appearance of financial self-dealing, Justice Thomas should also recuse himself from cases in which one of the parties is a company or trade group that has made a sizeable contribution to Liberty Central.

An important wrinkle: As a 501(c)(4), the group can raise unlimited money for lobbying without identifying all its donors. So how will we know whether Thomas is taking himself out of every relevant case? Liberty Central should err on the side of disclosure—let's see if it does. This is particularly salient because Justice Thomas, and Justice Thomas alone, will make the decision about whether to sit out a case. Recusal calls by the individual justices aren't reviewed by the court as a whole, or any other body. "That's the real problem," Stanford law professor Deborah Rhode says. "There's no structure for oversight. I'd say most of the time judges do the right thing, but when they don't, there's very little you can do about it."

In lambasting the LAT for raising a question about Ginni Thomas' Tea Party affiliation, commenters on the right have pointed out that no one worries over Judge Marjorie Rendell's marriage to Pennsylvania Gov. Ed Rendell, or Judge Stephen Reinhardt's to Ramona Ripston, who headed the Southern California branch of the American Civil Liberties Union until her retirement in February. It's not really a mystery why those marriages haven't generated headlines—the judges have recused themselves when it was called for, and their jobs are lower-profile. (Quick, which courts do they sit on? If you said the 3^rd Circuit and the 9^th Circuit, you pass the bar.) Judge Rendell doesn't hear cases when a party has made a donation to her husband's campaign unless both sides waive objections. She also doesn't go to political events with the governor. Reinhardt recuses himself from cases brought by the ACLU of Southern California.

In certain cases, these recusals surely hurt Ripston's side. "They always ask me," Ripston told the LAT when she retired, "why I couldn't have married one of the conservatives and taken that vote away." She is talking about Reinhardt's policy of recusal, not her control over him, contra McCarthy. Since Liberty Central does political rather than legal activism, Ginni Thomas probably has less reason to fear that she'll cost her cause her husband's vote.