Before I begin, I must express my pleasure with the decision of University of Connecticut administrators to fully lift the mask mandate this week. Doing so was long overdue, but absolutely the right move. I especially appreciate the power granted to students included in their email announcement: “Students cannot be directed or otherwise compelled to wear a mask if they do not wish to.”
With that out of the way, I must now express my displeasure with America’s most senior Supreme Court Justice, Clarence Thomas. For those who haven’t heard, the actions of Thomas’ wife, Virginia “Ginni” Thomas, have put the justice in hot water.
On March 24, an explosive report from Bob Woodward of The Washington Post detailed Ginni Thomas’ involvement in the aftermath of the 2020 presidential election. The report revealed Thomas had texted then-President Donald Trump’s chief of staff, Mark Meadows, days after Trump’s loss in November 2020. In this text conversation, she called Joe Biden’s victory “the greatest Heist of our History” and urged Meadows to advise Trump against conceding the election to Biden.
The existence of Thomas’ texts was uncovered by Woodward’s report, and confirmed when Meadows handed over his information to the special House committee investigating the events of Jan. 6, 2021. As if her messages weren’t bad enough, Thomas also attended Trump’s infamous “Save America” rally at the White House that day — though she did not march to the Capitol and claims to have left the premises before Trump even spoke.
Even if Clarence Thomas had no involvement in his wife’s shenanigans — which we’ll probably never be able to prove definitively — her actions damage the credibility of both Thomas as a justice and the Court as an institution.
First and foremost, there is the principle of judicial neutrality. Neutrality is best defined as the idea that judges and SCOTUS justices should (a) take an impartial view of the Constitution when ruling on the law and (b) maintain a healthy degree of independence from the executive who appoints them. While many on both sides of the political aisle have criticized neutrality as an impossible standard to maintain, Ginni Thomas’ actions clearly fall outside what is appropriate for her husband.
The Saturday, April 2, episode of “Saturday Night Live” illustrates this better than I ever could. As part of a broader skit titled “Fox & Friends Cold Open: Supreme Court Confirmation,” Clarence Thomas’ character (played by Kenan Thompson) answers the Fox News panel’s questions vaguely without confirming or denying any of his wife’s actions. His catchlines, “That’s what they say” and “I guess we’ll see,” drew repeated laughs from the audience. Meanwhile, Ginni Thomas’ character (Aidy Bryant) hangs on her visibly uncomfortable husband and embraces her role as “the Yoko Ono of the Supreme Court.”
Though it is satire, the SNL skit raises an important question about judicial neutrality: What reason does Ginni Thomas legitimately have to text Meadows about “the greatest Heist of our History?” I have no qualms with Thomas’ activism, even if it is not historically the place of a SCOTUS spouse. But when said activism transforms into backdoor executive branch dealings that would make Richard Nixon blush, Thomas has compromised neutrality and affected her husband’s jurisprudence.
This is most obviously evident by Thomas’ stance in the Trump v. Thompson case, which SCOTUS declined to hear back in February. The case weighed the public interest in releasing many Jan. 6-related documents with Trump’s claim of executive privilege — as a former president — for keeping these documents private. Thomas was one of several justices to vote against hearing the case, but he was the only justice to imply he would rule in Trump’s favor if enough others voted to hear the case. On the issue of judicial neutrality, Thomas is guilty by both association and action.
What should be done about this? That answer depends who you ask. Senate Minority Leader Mitch McConnell (R-Ky.) says nothing. Some Democrats and left-leaning thinkers have argued Thomas should have recused himself from the Trump v. Thompson deliberations, as well as recuse himself from all 2020 election and Jan. 6-related cases moving forward. Others, such as MSNBC Opinion columnist Mehdi Hasan, have argued that Thomas’ conflict of interest and extreme partisanship in rulings are grounds for impeachment by the House of Representatives.
Hasan notes that, in SCOTUS’s 230+ year history, only one justice has ever been impeached: Samuel “Old Bacon Face” Chase. Appointed by President John Adams as a staunch Federalist justice, Chase’s tendency to rule with his own partisan views instead of the law earned him this flattering nickname. But in Chase’s impeachment trial, the Senate recognized the dangerous precedent of removing independent justices and acquitted him.
While I have argued that Thomas compromised his independence as a justice, his shortcomings are not equal to those of Old Bacon Face’s. An analysis of the partisan leanings of each current justice by political scientists Andrew Martin and Kevin Quinn named Thomas the most conservative incumbent, at a margin of +3.03 to the right of center. However, the -3.959 score of Justice Sonia Sotomayor — an Obama appointee and the first Hispanic person confirmed to SCOTUS — means Thomas is actually not the most “radical” justice serving today.
While impeachment is ill-advised and unlikely, let’s imagine the House Democrats become energized by the pending confirmation of Ketanji Brown Jackson to SCOTUS, which is likely to happen before the end of this week. Jackson’s confirmation is certainly an achievement for Democrats, but it accomplishes little in changing the Court’s ideological composition — the outgoing liberal, Justice Stephen Breyer, will be replaced by the incoming liberal, Jackson.
But if Thomas, a staunch conservative justice who has served for more than 30 years, is further plagued by this scandal, it could absolutely become a situation that transforms SCOTUS’ ideological composition. A conviction on any article of impeachment is impossible without a Democratic supermajority in the Senate, but the combination of political pressure from this scandal and Thomas’s age — he will be the oldest incumbent justice after Breyer’s retirement — could push America’s second Black justice to an early retirement.
In other words, if Thomas becomes the next 1990s appointee to follow Breyer out the door, the future balance of SCOTUS gets a lot more interesting.
Since Anita Hill first accused him of sexual misconduct more than 30 years ago, Clarence Thomas has been no stranger to controversy. But because this controversy hits him so close to home and reveals far more involvement in the executive branch than is advisable or appropriate for a Supreme Court Justice, Thomas should recuse himself from cases related to the 2020 election and the events of Jan. 6, 2021. And if Ginni Thomas is called before the committee, she better be ready to explain herself.