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Supreme Court Justice Clarence Thomas, left, and his wife Virginia Thomas © AP For
a legal junkie like me, it’s a tense time to be filling in for Rana.
The past few weeks have not been a great stretch for those of us who
believe that a thoughtful, non-partisan Supreme Court is crucial to the
functioning of American democracy. First,
the Republicans on the Senate Judiciary committee turned the
confirmation hearings for Ketanji Brown Jackson into a platform for
riling up their base. They constantly interrupted her, attacked her
(normal) record on child porn sentencing as a lower court judge, and
tried to draw her into damaging comments on critical race theory and the
definition of a woman. Although the Harvard-educated judge retained both her cool and her dignity, most of the GOP is preparing to vote against Jackson on the unproven grounds that she would be a judicial activist. (Susan Collins of Maine has said she plans to be a rare, and possibly the only, exception to the party-line vote.) Then came the revelations from Bob Woodward and Robert Costa
of texts between Virginia “Ginni” Thomas, the wife of longtime justice
Clarence Thomas, and then-president Donald Trump’s chief of staff Mark
Meadows, in which she pressed him to help overturn the results of the
2020 elections. The sheer level of paranoia and misinformation in the 29
messages are frightening on their own. What
makes the messages a threat to the US constitutional system is that
they were part of a trove of digital communications sought by the
congressional committee that is investigating the January 6 2021 attack
on the Capitol. When Trump asked the Supreme Court to block the transfer
of the records, Thomas not only participated in the case, he was the
lone justice to indicate he would have kept the records secret. Lower
court judges are legally required to recuse themselves from cases where
their impartiality could be questioned. Supreme Court justices are
trusted to make their own decisions. Thomas knows this and has done so
in the past — he did not participate in a 1995 case involving the
Virginia Military Institute because his son was enrolled there at the
time. As
a member of a two-career couple that has periodically had to navigate
potential conflicts of interest, I would ordinarily have some sympathy
for Ginni Thomas when she says,
“Clarence doesn’t discuss his work with me, and I don’t involve him in
my work.” It would be absolutely unfair to require her to sit at home
knitting for fear of some unspecified future conflict. But
their behaviour over the years has repeatedly undercut this argument.
Back in the early 2000s, Clarence failed to report Ginni’s substantial
income from the Heritage Foundation on his disclosure forms for at least five years
— until the watchdog group Common Cause pointed it out. He also
emphasised how close they are in his 2021 autobiography. His bitter
confirmation hearing (when he was accused of sexual harassment by Anita
Hill), he wrote, “had the effect of melding us into one being — an
amalgam, as we like to say”. Democrats,
outraged at Thomas’s failure to recuse himself, are calling for his
resignation and for a new law that would impose an ethics code on the
Supreme Court. But House Speaker Nancy Pelosi didn’t help when she
opined that, “I don’t think he should have ever been appointed” in the
first place. Though she was almost certainly referring to Hill’s
allegations, the comments risk making the party look vindictive. The
whole point of giving nine lawyers the power to review the work of
democratically elected politicians is to ensure a cool-headed check
rooted in the constitution and legal precedent. Right now, Thomas and
most other members of the current conservative majority have another
role in mind. They appear bent on rolling back decades of social and
economic change, no matter how many past cases they have to overturn
along the way. Putting Jackson on the court is unlikely to alter their
views or the balance of power. The
public already had grave doubts about the court’s role before these
recent revelations: a Quinnipiac University poll in February found that 61 per cent of
Americans believed the high court was motivated primarily by politics,
and they didn’t like it. The court’s job approval rating was negative by
a 40-47 per cent margin. Highly charged pending cases on abortion and
affirmative action are only going to add to the ferment. |