Last-Minute Addition To Sweeping Defense Bill Will Shield Judges’ Families’ Information

Topline

The House is set to pass a new set of protections for federal judges’ families Thursday that were added at the last-minute to the sweeping defense bill, including shielding the public from knowing where they work — drawing scrutiny from critics amid questions about Ginni Thomas, Supreme Court Justice Clarence Thomas’ wife, and her right-wing activism.

Ginni Thomas, wife of Supreme Court Associate Justice Clarence Thomas, moderates a pannel discussion … [+] on February 23, 2017 in National Harbor, Maryland.

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Key Facts

The Judicial Security and Privacy provision — which has been in the works since 2020, when the son of a federal judge in New Jersey was murdered — was added to the enormous National Defense Authorization Act on Tuesday ahead of a Thursday vote.

The provision allows federal judges, including Supreme Court justices, to have information about their immediate family members shielded from the internet and public documents.

Family members will be able to shield information about email addresses, social security numbers, bank accounts and license plates, but also more general information like a f birthdays, schools or places of employment (other than government agencies), and under the bill, those who don’t remove the information can face legal action and fines.

Gabe Roth, executive director of judicial ethics watchdog Fix the Court, told Forbes in an interview that the organization believes the bill is unconstitutional, saying it “chills speech and could potentially chill investigations into federal conflicts of interest” by protecting too many personal details.

Roth warned that under the current bill, someone could be fined if they wished a judge’s family member happy birthday on social media or congratulated them for getting into college.

New Yorker reporter Jane Mayer noted on Twitter the law could also result in Ginni Thomas being able to conceal groups she’s involved with as a right-wing activist, as she’s come under fire for aiding efforts to overturn the 2020 presidential election and having associations with groups that have come before the Supreme Court.

The office of Sen. Robert Menendez (D-N.J.), who sponsored the judicial security bill, has not yet responded to a request for comment about the criticism of the bill.

Chief Critic

“Frankly, we should all be focusing on strategies that work to improve judicial security, not arbitrary provisions that could chill speech,” Roth told Forbes, calling it “preposterous” that someone could be punished for sharing innocuous information.

What To Watch For

The House is expected to vote on the NDAA as soon as Thursday, and the Senate would have to vote on it after and approve the judiciary security provisions for it to become law. If it does get enacted, Roth told Forbes that Fix the Court or other advocacy groups are likely to bring litigation against the law in an effort to have the aspects of the judicial security bill stripped from the legislation. Under the terms of the bill, those who publish information about judges’ family members can have a court order brought against them to force the information’s removal, and if they don’t remove it, they can be forced to pay an unspecified amount in legal damages, or up to $4,000 if it’s a government agency that violates the law. In addition to concerns about individuals being punished for sharing minor information about judges’ family, activist group Demand Progress noted it could also thwart investigations into the judiciary. The group pointed out that a Wall Street Journal investigation on judicial conflicts of interest was only made possible by the Free Law Project requesting judicial disclosure documents and publishing them online.

Contra

Roth told Forbes he’s not as concerned about the NDAA’s impacts on Ginni Thomas specifically as compared with the bill overall, particularly given a carveout in the bill that still allows media reports on justices’ families without penalty. “I think that I’m going to trust the American press to get to the bottom of what her entanglements are,” Roth said, emphasizing his greater issue with the legislation is that it’s part of a “global pattern of the judiciary trying to push patently unconstitutional and illegal things on the American people.”

Key Background

Congress’ push for a judicial security bill comes amid a rise in attacks on judges and justices and threats to their security. Menendez first introduced the bill in 2020, after New Jersey Judge Esther Salas was the target of an attack that resulted in her son being killed and husband wounded. In more recent months, conservative Supreme Court justices faced a rise in threats to their security after they voted to overturn Roe v. Wade, which led to TikTok users publishing justices’ purported credit card information online and a murder attempt on Justice Brett Kavanaugh. Congress passed legislation that increased security for Supreme Court justices and their family members in July as a result. Ginni Thomas has separately come under increased scrutiny for her activism in recent months as reports have emerged about her advocacy for overturning the 2020 election, which came as her husband was hearing cases in the Supreme Court on the same issue. The justice’s wife also has ties to several groups that have filed amicus briefs with the Supreme Court advocating for certain issues that her husband will help decide, the New Yorker reports, including the court’s landmark case this term on affirmative action.

Last-Minute Addition To Sweeping Defense Bill Will Shield Judges’ Families’ Information — Including Ginni Thomas’ Activism