The judicial code of conduct does require judges to separate themselves from their spouses' political activity. As a result, Marjorie Rendell, a judge on the 3rd U.S. Circuit Court of Appeals, has stayed away from political events, campaign rallies and debates in Pennsylvania. Her husband discussed such issues in his first campaign for governor.
Since then, Judge Rendell has sought the opinion of the judiciary's Committee on Codes of Conduct when a case presents a possible conflict of interest involving her husband's political office, she said.
Law professor Gillers said that Justice Thomas, too, should be on alert for possible conflicts, particularly those involving donors to his wife's nonprofit.
"There is opportunity for mischief if a company with a case before the court, or which it wants the court to accept, makes a substantial contribution to Liberty Central in the interim," he said.
Justice Thomas would be required to be aware of such contributions, Gillers said, adding that he believes Thomas should then disclose those facts and allow parties in the case to argue for recusal.
But it would be up to Justice Thomas to decide whether to recuse himself. He could not be reached for comment.
As a 501(c)(4) nonprofit, Liberty Central can raise unlimited amounts of corporate money and largely avoid disclosing its donors.
Because of a recent Supreme Court decision, Citizens United vs. Federal Election Commission, the group may also spend corporate money freely to advocate for or against candidates for office.
Justice Thomas was part of the 5-4 majority in that case.