A lot has happened this week respecting the Supreme Court and the matters not directly involving their oral arguments and decisions this week warrant separate entries. Thomas didn't show up for oral argument so his illness basically fits into the former. Nonetheless, that too has wider implications.
[This is an ongoing issue like various things. I expanded this entry twice already, first as an independent entry, a bit more today. I realize nearly no one reads these things, but as a whole entries are not merely open Wikipedia entries. I do tweak them a bit, but extensive change probably warrant a comment for form's sake at least.]
I had an extended discussion about the latest Ginni Thomas craziness (a word that is among those that fittingly explains the reactions). There already has been extended discussion about her long term public activities and very conservative views. She, for instance, was mixed up with a woman chosen to be a clerk for a hot button conservative judge (a major controversial Bush43 pick), a clerk who once noted "I hate black people."
This includes a long article and various other coverage. She was not surprisingly rabidly pro-Trump. Before Trump won the nomination, she was signed on to be Cruz delegate in 2016. This is but an example of her long involving in partisan and ideological disputes, including in flashy ways.
“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”
All the material coming out -- it's still coming -- is a bit overwhelming. I won't try here, but it would be useful if people would provide easy to understand bullet point summaries. And, there is more! Text messages from Ginni Thomas to the Trump chief of staff not only showed various fantasies (such as Biden people going to GITMO, which she hoped was true) but blatant evidence of ongoing conspiracy (at least in intent) to overturn the election.
The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.
This is from Adam Liptak, the long term NYT Supreme Court analyst, respected for his general reasonableness. This sort of thing on some level is tragically "clickbait" that will just make people more angry and convinced the system is corrupt and nothing will be done.
As with multiple Trump things -- from before the 2016 elections on -- there is a certain "wait, this is totally fucked up" quality to it. Especially once we are reminded here that Clarence Thomas did not recuse himself from challenges arising from election (and its investigation), even though his vote basically doesn't matter.
And, as I noted in the original discussion (removed for this) ...
Steve Vladeck reminds us on Twitter that there is actually a federal law that applies to justices too regarding recusing when there is clear conflict though without an enforcement mechanism other than self-policing and in the either impeachment or something.
He tweeted: "Under 28 U.S.C. § 455, a #SCOTUS Justice is required to recuse from a case not just if they know that their spouse has “any … interest that could be substantially affected by the outcome,” but also if their impartiality “might reasonably be questioned."
Liptak's article notes the justices never quite granted even that rule was constitutional. Roberts said they would (to quote Liptak's paraphrase) follow it "in their own way." Ha ha. Again, people want a "binding ethics code," but how will it bind Supreme Court justices? The justices thing anything truly binding for Supreme Court justices is questionable.
Roberts in his end of the year report for the federal judiciary (2021) was aware that people were concerned. The report however basically said "trust us," including (the first of three things cited in the report) for recusals. Trusting people however isn't quite our way. There needs to be a bigger check than that. Especially if justices are not even going to grant the confirmation of the limited recusal rule being applied to them.
As Liptak notes, the latest reveals (as if we didn't know enough, including her involvement in "Stop the Steal" rallies; this is not merely about having "views" about things) has led legal ethicists and now apparently some Democrats in Congress to say it is OBVIOUS Thomas can not take part in cases involving 1/6.
There is a sort of closing the barn door after the cows' are gone feeling to that, but like "waterboarding is torture," firm statements of limits have some value. There are various cases where spouses are involved in some fashion with matters brought before courts where line drawing is complex. But, Marty Ginsburg and other spouses made career choices to remove blatant conflicts. Justice Clark resigned when his son was picked by LBJ.
Again, I don't know all the proper lines here. I think Prof. Segall is probably wrong that Kagan did not do enough to avoid conflicts in the PPACA Cases. There was also a rule of necessity there that has been referenced from time to time. Without her presence, the Supreme Court would have been split 4-4 (granting the same result).
I was more wary of hunting buddy Scalia taking part in the Cheney dispute, especially since his vote didn't matter. Why take part in a matter of some public controversy and cause problems? He did recuse when he talked about the Pledge of Allegiance and that issue came up. His vote also would not decide the case, but his absence very well made the oral argument more sedate. Of the two, the first to me (though a paralegal teacher of mine who because a local judge thought the whole thing silly) had more of an appearance of impropriety.
On some level, I figured that Thomas is so hardcore that his wife's activities wouldn't really change his vote. A sort of "horrible person can't be libeled" philosophy, maybe, but seemed true. Still, appearance of impropriety is a bit more complicated than that. The two are spouses, "best friends" (to you a label that pops up in the texts), and Thomas repeatedly is involved in the conservative moment, including such things as marrying Rush Limbaugh.
As to his own involvement, just what that entails seemed hard to gauge from the coverage, though hints (like Ginny Thomas noting to the governor of Florida that he contacted him somehow) do pop up.
A recent NYT article that I linked above (3/26) notes she "regularly invokes her husband's name" such as noting to Gov. DeSantis, a likely leading 2024 presidential candidate now, that Justice Thomas had contacted him “on various things of late." There was also one thing reported where she apologized to various conservatives that might be said to be a wider "Thomas family" (including former clerks) for being too divisive.
Now, some of this is probably puffery, but I have seen discussions about how there is a strong connection between the two with Clarence Thomas often defending his wife. Again, why wouldn't he, but given her activities, this starts to seem a bit worrisome. And, it makes you wonder about the exact details after a while, especially with talk of communication with governors and so on.
They surely isn't some total "Chinese wall" between them. And, recusal at the very least includes close family connections. Furthermore, I am not aware of any discussion that basically says that Clarence Thomas' views were somehow more moderate than his wife's political views. He is smart enough not to blatantly promote them that way, but it is not somehow unfair (unlike in various cases) to basically assume he agrees with them.
[And More: An earlier summary, including Thomas engaging with conservative groups and making hints about his views on conservative values -- which he does in various interviews too -- is cited here.]
Also, a controversy arose (rightly so) regarding him not disclosing money involving her activities. This was something that happened a while back, that is, during the Obama Administration.
I will say again that it is really hard to keep track of all of these things. I find this true for a variety of things and we should keep that in mind when the average person cannot even name multiple justices, which at this point seems a bit crazy since so many are in the news, including (though I'm loathe to give them that honorific) were appointed in the last few years.
The general rule I suggest is a good one and the right one for
preserving the integrity and honor of the judicial office. And it can't
be employed strategically by advocates if the rule is observed in the
first place, such that the spouse has already desisted or the judge has
already chosen not to continue in judicial office.
One law professor has a long analysis on the recent dispute and basically comes to the judgment that someone in his position should resign. There is a certain duty, if perhaps a matter of a Breyeresque balancing test, where spouses to public officials should not do certain things. He sets forth this in a dignified way, but it is a strong bottom line.
And, various lower court judges of a liberal persuasion might in some fashion violate the rule to some degree. I use the qualifier advisedly. The Supreme Court stands out. It is the "Supreme" Court. Still, I'm sure issues can be cited. If a judge has a spouse who is in political office, it can cause difficulties. Not that this wasn't true in the past somehow (say brothers or something), but the rules are stricter these days.
I do not think it happens on the Supreme Court level so blatantly as here though it helps that old fashioned views about women in public life results in much less conflict. Still, Marty Ginsberg was careful, Jackson's husband is a doctor, and Sotomayor/Kagan are both not married. Breyer's wife also was to my knowledge careful though one of his daughters (a minister) is somehow involved in liberal causes. I don't know any on the conservative either who are anywhere close to Ginni Thomas.
No one should have to choose between their devotion to their spouse and their duty to the nation. But Justice Thomas has shown himself unwilling or unable to protect what remains of the court’s reputation from the appearance of extreme bias he and his wife have created. He would do the country a service by stepping down and making room for someone who won’t have that problem.
A member of the NYT editorial board "goes there," where only various members of the choir (or in regard to Roberts, sorta a half-serious comment he should retire for the good of the Court) have gone. I thought Thomas unready to be a justice and his sexual harassment of Anita Hill just sealed the deal. Since then, I thought he was very wrong on various things, but realized he had a personable side (beloved by court personnel) and wasn't merely the devil incarnate.
I didn't think his confirmation was as illegitimate on some level as the Trump trio. Kavanaugh was likely involved in a sexual assault as a teenager and other at least boorish offensive behavior. Thomas was a sexual harassment, but I would not label him a "rapist." Small praise, but when I said he had some good questions from the bench, someone was pissed off at me.
Still, at some point, a line is crossed. It has been crossed. He knew of his wife's activities, but continued to take part in matters involving them. This is blatantly a violation of his oath of office. I think it is possible to have an independent judiciary where there are binding ethic rules. States and countries even manage to set up such courts where those in need of recusal can be replaced. This was even done in a major Latin American abortion ruling.
Our system has checks. But, like with Trump's impeachment, there is only a limited will to bring them out. Even talking about court expansion is put out there as a HORRIBLE thing even from the reform minded Fix the Court. Checks are useless if they do not have some bite. Some line has to be drawn at some point. This includes at least being willing to TALK about it. This is why talking about court expansion is important.
Thomas crossed a line. It remains to be seen if he actually recuses (people figure he won't; I 'm a bit unsure). That would be a very limited sign of sanity. There was a law recently passed that helps disclosure of federal judges' stocks. Stricter sexual harassment rules for federal judges are being debated. These things happen bit and bit. Pressure can effect other things too. It's all related somehow in not so clear ways.
But, I am going further here. It is time for him to resign. Yes, I realize that my voice in the wilderness or any chance of impeachment is minimal. Any one voice is. Things have to be spoken aloud all the same. As the Supreme Court readies to in some fashion continue (see Texas) strip abortion rights, the fact that the body doing it is so corrupt should be bluntly stated.
Thomas' actions here are part of a wider problem with the Supreme Court itself. Some limits must be put in place for the institution to warrant our respect. Over our history, the Supreme Court and individual justices have shown varying degrees of self-restraint. This restraint to many seems non-existent or at least somewhat vague. But, an analysis of Breyer's tenure at his retirement announcement suggests there really was some concerns (less prevalent now with a 6-3 Court) even when justices had the votes.
This includes reactions from some "median" of the country, including maybe even a few noises from non-Democrats. For instance, the top Republican on the Senate Judiciary Committee supports televising the Supreme Court, if not willing to put that much political capital into the attempt. As with Trump, we also have a responsibility to call on people to not just go along, becoming enablers. Some just go "all-in," while some go along. That is how Trump won and retained power.
Those from the other end have to push. We have some power to force restraint even among those with life tenure. We can laugh, but that has been shown, including because they know without "purse" or "sword," at some point they will be harmed. And, we are at the point where more than words are appropriate. Some degree of restraint will result.
"Some degree" is not satisfying of late. Resign. Investigate. Impeach.
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[The below touches upon the Supreme Court, abortion rights, and Thomas, but is mostly an aside involving things I have engaged with in the past. Maybe, it should be left out from here, but sorta want to vent a bit.]
Eric Segall's Supreme Court Myths podcast with various legal minds is at fifty-five episodes. I have listened/watched many of them, including the latest with the author of The Cult of the Constitution, a book I have reviewed and/or provided a "book summary" for another another website.
Prof. Segall is great in various and is a nice guy. But, he is annoying and at times full of himself. He at one point in the interview did a Cassandra routine involving his predictions in the PPACA Cases, including noting the disability community was mad at him. He skips over that they DID overrule mandatory Medicaid expansion, harming lots of people.
He at one point (he regularly doesn't push his guests and they in return are polite, as was the one here) said he knew something about Thomas, but couldn't say what it was. Oh shut up. He also suggested Nixon had views on abortion like a moderate Democrat these days. That is a tad asinine; he wasn't an extremist, but his 1972 election campaign was still anti-abortion.
One other thing. Part of his "I'm so pure" routine is that he thinks both Heller (guns) and Roe (abortion) was wrongly decided. The guest noted she is wary about the argument in Roe, thinking abortion is a 13A issue, or at least an equal protection issue. She was wary about overturning Heller. In her book, she granted a right of self-defense.
Prof. S. suggested that maybe he would grant that there is a right to choose an abortion on equal protection grounds, noting he tells his daughters that it is necessary for their equal place in society. Yeah. That's why (part of it at least) it is a constitutional right! If this turns on bad reasoning, based on the state of the law at the time, he should clearly state that. Anyway, Casey in part rested on equality anyway. So, you know, pick a damn lane.
This is only marginally about Thomas, but I wanted to get it out of my system. Anyway, he's just an example of someone who needs to be smacked around a bit. He's a bit too full of himself and I think it is in part (though he is mad when he is accused of it) a matter of privilege, being a privileged (repeatedly references his vacations) white male with tenure.
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