Behind the US Supreme Court scandal

Trust in America's political and judiciary systems is taking another hit from the recent Supreme Court scandal, argues Hayden Thorne.

Over the last week, the United States Supreme Court, and in particular Justice Clarence Thomas, has become engulfed in a scandal that has eroded the integrity of the Court and raised serious questions about Justice Thomas’ integrity, ethics, and fitness to sit on the bench.

The scandal

The scandal relates to the 6 January 2021 Capitol insurrection and the role of Justice Thomas’ wife, Virginia ‘Ginni’ Thomas, in seeking to validate the Trumpian claim that the election was ‘stolen’ and to work out a way to overturn the result.

The current investigation into 6 January has uncovered text correspondence between Ginni and then-White House Chief of Staff Mark Meadows in which Ginni implored Meadows to “Help this Great President stand firm” and accused the left of “attempting the greatest Heist in our History”. Ginni, a long-time conservative activist from the far right of the Republican Party, has close links with the Trump administration and in particular Trump’s advisor Steve Bannon (of Breitbart News fame).

Without delving too deeply into all the messages between Ginni and Meadows, it is clear Ginni believes a) Trump won the 2020 election and b) the Republican Party and Republican politicians were not doing enough to overturn the result and have Trump awarded the presidency.

To be clear, these are not views exclusive to Ginni— they are scary conspiracy theories, perpetuated by the American far right with no basis in reality.

Thomas’ role

Is Clarence Thomas responsible for the political views of his wife? No. But Thomas’ own actions since 6 January suggest a far deeper issue.

Unsurprisingly, the investigation into the insurrection raised matters that came to the Supreme Court for consideration—in particular, whether the National Archives should release material relating to events of that day, or whether this material was covered by executive privilege. The Court ruled 8-1 the documents had to be released. The one dissenter? Clarence Thomas.

Legal commentators are almost universally in agreement that Thomas should have recused himself from the case, given a clear conflict of interest between his role as a justice and his wife’s persistent activism on the issue. Unfortunately, the Supreme Court’s recusal rules are vague and effectively amount to a self-policing ‘do the right thing’ approach. Thomas, clearly, cannot be trusted to do the right thing.

Ginni Thomas recently claimed that she and Clarence operate in “separate professional lanes”. But a closer study of Justice Thomas’ work on the Court suggests they share many of the same ultra conservative values.

Thomas, for example, has opposed protection of the rights of the LGBTQI+ community at almost every turn. He dissented in Lawrence v. Texas (2003), the case that declared criminal punishment for sodomy unconstitutional; he dissented in Obergefell v. Hodges (2015), the case in which the Court voted to recognise same sex marriage; and he again dissented in Bostock v. Clayton County (2020), which held workplace discrimination against gay and transgender people contravened the Civil Rights Act.

Thomas has also opposed any constitutional right to abortion, opposed affirmative action, and generally favours police and prosecutors. He even dissented in Atkins v. Virginia (2002) and Roper v. Simmons (2005), which ruled executing those with mental disability or under 18, respectively, was unconstitutional.

In short, his record on the Supreme Court is ultra-conservative and he regularly ranks as the Court’s most conservative member (although was often in competition for that spot with Antonin Scalia). Justice Thomas does not rank among the greats who have sat on the Court. He writes fewer opinions than most and has a peculiar habit of not speaking during oral argument—at one point going more than 10 years between questions. It is unlikely, despite his long service, that his judicial work will leave a lasting imprint on American law.

Beyond his judicial views, Justice Thomas is no stranger to controversy. His confirmation hearings in 1991 were some of the most controversial in American history. He was confronted by allegations from Anita Hill, and others, of sexual harassment. Despite eventually being confirmed, those allegations have cast a shadow on Thomas’ service—an issue to which there never has been a satisfactory resolution.

Part of a broader trend?

Justice Thomas’ failure to recuse himself when all logic suggests he should have is emblematic of a wider trend amongst the American right—a win-at-all-costs and damn the consequences attitude that is undermining the institutions at the heart of American democracy.

The presidency of Donald Trump, combined with the actions of his executive in obstructing the outcome of the 2020 election, have done considerable damage to the reputation of the American government. Public trust in the House and Senate is also at a low ebb, not helped by a broad failure to act in a bipartisan way on any issues of significance.

The win-at-all-costs attitude is no better exemplified than by the hypocritical approach of Senate Republicans, led by Mitch McConnell, to rig the Supreme Court in their favour. In 2016, McConnell, with the support of a controlling majority in the Senate, refused to consider the nomination of Merrick Garland to replace the deceased Antonin Scalia.

For nearly a year, McConnell refused to consider any Supreme Court justice nominated by Barack Obama, claiming it was too close to an election and that the next president should be allowed to select the next justice. Four years later, when Ruth Bader Ginsburg died, McConnell managed to ram through the confirmation of Amy Coney Barret, a Trump appointment. This was right before the 2020 election and McConnell was seemingly unconcerned by the blatant hypocrisy of his position.

While the aggressive conservatism of the Republican Party in recent years has borne results, one has to wonder at the damage it is doing to both the image and reality of American democracy. The lack of morality or legal ethics demonstrated by Clarence Thomas is just the latest in a string of incidents calling into question the validity of America’s governing institutions.

Contrast all of this with what should have been the leading story in the last fortnight—the confirmation hearings of President Joe Biden’s nominee to the Supreme Court, Ketanji Brown Jackson. In the face of questioning that could be deemed questionable at best, on topics from critical race theory to allegations she had been lenient on child-pornography offences (the right-leaning National Review described the allegations as “meritless to the point of demagoguery”), Brown Jackson conducted herself with the decorum and propriety that properly befits a justice of the Supreme Court.

The evidence suggests she is an extraordinarily capable and well-qualified nominee, who will do what Clarence Thomas hasn’t, and stand up for the people who need her.

Read the original article at Newsroom.

Hayden Thorne has an LLB from Te Herenga Waka—Victoria University of Wellington, where he is currently a PhD candidate in the history programme, specialising in the United States Supreme Court.