Pablo Martinez Monsivais/AP Photo
Supreme Court Justice Clarence Thomas and his wife Virginia Thomas leave the funeral services of the late Supreme Court Justice Antonin Scalia, on February 20, 2016.
Another explosive controversy swept over the Supreme Court last week. The Washington Post and CBS News reported that after Donald Trump lost the 2020 election, Clarence Thomas’s wife Ginni repeatedly texted White House chief of staff Mark Meadows, urging him to overturn the election somehow. That immediately brought attention to Justice Thomas’s lone vote against allowing the January 6 committee in Congress access to Trump administration communication, including those very texts.
It’s virtually the dictionary definition of judicial corruption. But it’s only the beginning of the legitimacy problems at the Supreme Court—an institution which has de facto claimed the power to dominate both Congress and the president, is increasingly aggressive about exercising it, yet has a small and rapidly shrinking fig leaf of justification for doing so.
For starters, Justice Thomas was already in hot water over refusing to recuse himself from multiple cases in which his wife had a vested interest. As Jane Mayer reports at The New Yorker, organizations affiliated with Ginni have filed numerous amicus briefs in cases before the Court, and Clarence has blithely refused to recuse himself from any of them. In one of those cases, Frank Gaffney (who is notorious for his anti-Muslim comments, and whose organization was heavily funded by wealthy Trump donor Rebekah Mercer) paid Ginni $200,000, and he went on to file briefs in support of Trump’s Muslim ban. Not only did Justice Thomas fail to recuse himself, he also didn’t report his wife’s income on his financial disclosure report that year.
The uncovered text messages bring the Thomas family operation into sharper focus. Frankly, Ginni Thomas is what we in the business would call a nut. If you spend any time on conservative Facebook, you know the type: an aging conservative whose mind is kept in a constant state of inflamed, delirious hysteria by Fox News clips and frequently misspelled memes. (“Sidney Powell & improved coordination now will help the cavalry come and Fraud exposed and America saved,” one message read.) A Supreme Court justice is behaving wildly unethically in ways that enable the politics of a deranged Facebook Aunt.
But it’s worth pulling back from the Thomas family drama. Trump appointed three of the current justices. His first vacancy was thanks to then–Senate Majority Leader Mitch McConnell holding Antonin Scalia’s seat open after he died in 2016. McConnell refused to even hold hearings on President Obama’s nominee Merrick Garland, in the obvious hope that Trump would win the election—an unprecedented step that violated all previous norms and the plain language of the Constitution, which gives the Senate the power to advise and consent on nominations, not to usurp the president’s power to appoint justices.
Recall also that while Trump won the Electoral College in 2016, he lost the popular vote by 2.9 million. So while one of the conservative seats was straight-up stolen from Barack Obama, two more justices were appointed by a man who only took office after getting fewer votes than his opponent. That’s one-third of the entire Court holding office in flagrant violation of the basic norms of a typical democratic republic—namely, that power should derive from the “consent of the governed.”
It’s also worth noting that while Samuel Alito and John Roberts were appointed after George W. Bush won the 2004 popular vote, he won that in large part thanks to incumbency advantage after losing the popular vote in 2000.
Finally, let’s consider how Supreme Court term lengths are determined. Seats are often described as lifetime appointments, but as Matt Bruenig argues, this is not really true. The actual standard is lifetime or retirement, which is what most justices do instead of dying in office. Allowing them to retire whenever they want allows them to do it strategically, and hence perpetuate their own politics over time by quitting when a friendly face is in the presidency.
It doesn’t matter what “we the people” do or say, or whom we vote for; five clerics in robes get to lord over us.
With the increasing partisanship of Court nominations, and the close balance of power between liberals and conservatives, this means that the Supreme Court effectively sits outside of any kind of democratic accountability. Conservatives now have a 6-3 majority, and if they play their cards right they should be able to hold onto that majority indefinitely. Absent multiple surprise deaths in a row, or the Democrats holding the presidency for 15 to 20 years continuously, liberals will never get a majority again.
This renders the Supreme Court’s power to overturn laws and dictate the behavior of the president—something it just grabbed for itself, by the way, as the Constitution says nothing about this authority—totally illegitimate on democratic grounds. Not only were a critical mass of seats on the Court either stolen or appointed by a popular-vote loser, the institution is almost wholly insulated from elections in any case. It doesn’t matter what “we the people” do or say, or whom we vote for; five clerics in robes get to lord over us.
This is why I find Mayer’s question about whether Ginni Thomas is a “threat to the Court” misguided. Her husband’s unethical behavior is far from the first time the Supreme Court has been corrupt or appallingly immoral. The 15 years or so of the Warren Court were a brief interlude in an otherwise nearly unbroken tradition of defending racism and entrenched wealth. The Court was firmly pro-slavery. It was a stalwart supporter of white supremacist terrorism and Jim Crow apartheid. It invented corporate personhood out of nothing and struck down regulations on child labor, the eight-hour day, and numerous other worker protections. The last few worthy protections it created, like the right to abortion or gay marriage, are either already dead or clearly going soon, along with the remaining scraps of America’s civil rights laws.
Most Americans don’t know it, but no other rich democracy has this kind of hyper-aggressive judicial review. In some countries, there is a special constitutional court with limited jurisdiction, in others it virtually never happens at all. The reason is obvious: When a handful of rich lawyers get dictatorial power over a society, they will abuse it. As Thomas Jefferson wrote in a letter, “Our Judges are as honest as other men, and not more so.” It’s time to start facing that reality. Maybe we’ll even get around to ignoring the predilections of a corrupt, undemocratic body that wields judicial review as a weapon.
