One of the arguments back in 2016 to vote for Hillary Clinton was over the kind of people she would nominate for the Supreme Court. We’ve had a hard lesson in what ignoring that has led to: a Supreme Court stacked with a lasting extremist conservative majority that will be around for decades.
While The New York Times has not exactly been a paragon of journalism for some time now, it still puts out the occasional piece that demonstrates what it can do when it makes the effort. The New York Times Magazine has a very long article about:
(The link should get people through the Times paywall if it works as promised.)
Danny Hakim and Jo Becker have put together a detailed look at the long journey of the Thomases and how they are putting their conservative agenda into practice through both the Supreme Court and outside of it. It raises many troubling questions about the Justice and his wife.
Thomas has a history of involving himself with groups and people that raise questions about his impartiality and whether or not he should recuse himself from certain cases. (Spoiler: he doesn’t.) His wife as the article documents has been playing a very active role in radicalizing the Republican Party, and working hand in hand with some of the worst elements to be found on the right these days, including efforts to install really terrible people in government and steal the election for Trump.
One of things that comes through is their absolute certainty about the righteousness of their cause. They have an agenda and they have no doubts about putting it into practice. They are convinced liberals are destroying America — Justice Thomas has made no secret of his views on things like affirmative action, abortion, the right to privacy, and the ‘originalist’ interpretation of the constitution. Ginni Thomas has attracted less attention until recently, but she has been extremely active in building hard right conservative action groups and working the wing nut welfare money network. As the article makes clear, they are a team.
The article traces the opposition of Thomas to affirmative action from his own experience. As a law school graduate…
Thomas got his law degree from Yale but stuck a 15-cent cigar sticker to the frame of his diploma after failing to get a big law job — such firms, he would write, attributed his academic pedigree to preferential treatment.
Thomas concluded that he could not get hired because people would look at his skin color and assume he only got the degree because he got it because of affirmative action. The problem was not that their racism was the issue, the problem was affirmative action gave them an excuse to disregard him as not really qualified.
The corollary that IF affirmative action had never happened, there would have been no barriers to his getting that good-paying job a Yale degree should have guaranteed does not follow — racists will be racist with or without an excuse — but Thomas appears to feel that is the case.
It’s rather like the argument that talking about racism is the real racism. Whether or not Thomas was rejected because he might not have been as good a candidate as he thought he was is possibly not something he appears to have considered — or is able to consider.
Instead, he took the only job offer he received and went to work for Missouri’s Republican attorney general, John Danforth, and discovered the writings of the Black conservative Thomas Sowell, who assailed affirmative action as undercutting self-reliance; Thomas wrote that he “felt like a thirsty man gulping down a glass of cool water” to see his own beliefs articulated.
And the rest is history, unfortunately.
There is a more traditional kind of affirmative action; it involves affirming what the people with power to do things for you want to hear. Becoming a Yes Man is an old route to success of a kind. Thomas has become a superstar in that regard for conservatives.
But more than any other sitting justice, Thomas has stoked concerns of a hyperpartisan court. He has frequently appeared at highly political events hosted by advocates hoping to sway the court. He and his wife sometimes appear together at such events, and their appeal is apparent: He fulfills the hard right’s longing for a judge — and especially a Black judge — oblivious to the howls of the left, while she serves up the red meat the base wants to hear in her speeches. They often portray themselves as standing in the breach amid a crumbling society. “It’s very exciting,” Ginni Thomas said during a 2018 Council for National Policy meeting, “the fact that there’s a resistance on our side to their side.”
Ginni Thomas has her own backstory. If you wanted a cliché story of a privileged upbringing combined with a conservative family predisposition:
Virginia Thomas is the daughter of a president of a Nebraska architecture firm; the well-to-do family had two houses, one in Omaha and one in a nearby lakeside development called Ginger Cove that her father built. Ginni Lamp, as she was known then, was on a cheer squad for taller girls known as the Squires, brandishing a sword and a shield before football games. “She would march in front with that; she loved doing that,” said Sue Norby, a classmate. “My other friends were on the pompom squad because they were so short, but Ginni was on a different squad because she was tall, with other tall girls. She was the warrior woman.”
How the two hooked-up is a story in itself; it was her first marriage but his second. This is the money quote from the article:
Clarence and Ginni met in 1986 at a conference on affirmative action, which they both opposed. After a stint at the civil rights office of the Education Department, he was running the E.E.O.C.; she was an attorney at the U.S. Chamber of Commerce and mused that year to Good Housekeeping about someday running for Congress…
...“There’s no other way to politely say this, but the fact she married a Black man must’ve caused an uproar in that family, I can’t even imagine,” said Scott Bange, who dated Ginni in high school. In 1991, one of Ginni Thomas’s aunts told The Washington Post that the future justice “was so nice, we forgot he was Black,” adding, “He treated her so well, all of his other qualities made up for his being Black.”
(This is one of the things that makes dealing with humans on a rational basis so difficult. People who can be wonderful, warm, and charming in their personal and private lives can be absolute monsters in their beliefs and their larger actions. But no one ever said humans had to be consistent.)
I strongly recommend reading the whole thing. The article suggests Justice Thomas is on the verge of having his judicial philosophy become the guiding light for the Supreme Court’s decisions going forward.
For the three decades he has sat on the Supreme Court, they have worked in tandem from the bench and the political trenches to take aim at targets like Roe v. Wade and affirmative action. Together they believe that “America is in a vicious battle for its founding principles,” as Ginni Thomas has put it. Her views, once seen as on the fringe, have come to dominate the Republican Party. And with Trump’s three appointments reshaping the Supreme Court, her husband finds himself at the center of a new conservative majority poised to shake the foundations of settled law. In a nation freighted with division and upheaval, the Thomases have found their moment.
What does that mean for precedent and prior court decisions?
Thomas has also rejected the institutionalist approach when it comes to the doctrine of stare decisis. “When faced with a demonstrably erroneous precedent, my rule is simple,” he wrote in a 2019 opinion. “We should not follow it.” When he has cited Federalist No.78, he has underscored Hamilton’s comment that judges “would require an uncommon portion of fortitude” to defend constitutional principles when they are unpopular. “The trait that Hamilton singles out — fortitude — is fundamental to my philosophy of life,” Thomas said in a 2001 speech to the conservative American Enterprise Institute.
Shorter version; “If I think it’s wrong, it’s wrong. Precedent and contrary opinions can and will be disregarded The past has nothing useful to say, except when it agrees with me.”
And as part of the package, Ginni Thomas will be leveraging their mutual connections and his position to advance their hard right vision for America.
There is a direct line from the Reagan Revolution to the Trump Insurrection. The story of the Thomas family is an informative dive into how we got where we are today. There are a number of things we could do about the Supreme Court and the rest of the way our government is structured for that matter, but I won’t go into them here, other than to note:
...Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
UPDATE: Joan McCarter has a write up of the problems surrounding Biden’s nominee for the court, and the way Democrats seem to be approaching the situation. Anything that depends on Republican good will and good intent is not likely to go well.
UPDATE: Charles P. Pierce has weighed in on the NY Times article, and also links to the earlier January 21, 22 New Yorker article by Jane Mayer:
Is Ginni Thomas a Threat to the Supreme Court?
Behind closed doors, Justice Clarence Thomas’s wife is working with many groups directly involved in controversial cases before the Court.
Mayer begins what is another long article with this:
In December, Chief Justice John Roberts released his year-end report on the federal judiciary. According to a recent Gallup poll, the Supreme Court has its lowest public-approval rating in history—in part because it is viewed as being overly politicized. President Joe Biden recently established a bipartisan commission to consider reforms to the Court, and members of Congress have introduced legislation that would require Justices to adhere to the same types of ethics standards as other judges. Roberts’s report, however, defiantly warned everyone to back off. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence,” he wrote. His statement followed a series of defensive speeches from members of the Court’s conservative wing, which now holds a super-majority of 6–3. Last fall, Justice Clarence Thomas, in an address at Notre Dame, accused the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, he said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”
The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.” Thomas, a lawyer who runs a small political-lobbying firm, Liberty Consulting, has become a prominent member of various hard-line groups. Her political activism has caused controversy for years. For the most part, it has been dismissed as the harmless action of an independent spouse. But now the Court appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.
Here’s a couple of excerpts from Pierce commenting on The NY Times article:
Jane Mayer of The New Yorker beat The New York Times to this story by a month, but they're now on the curious case of Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, all-around wingnut whackadoo, and walking, living, breathing conflict of interest. One does not idly accuse the Supreme Court of being corrupt but, seriously, come on. I’d much rather that Ginni Thomas take payoffs in plain white envelopes from oil companies and pharmaceutical firms than engage in the kind of ideological corruption in which she is plainly complicit:
The Thomases have long posed a unique quandary in Washington. Because Supreme Court justices do not want to be perceived as partisan, they tend to avoid political events and entanglements, and their spouses often keep low profiles. But the Thomases have defied such norms. Since the founding of the nation, no spouse of a sitting Supreme Court justice has been as overt a political activist as Ginni Thomas. In addition to her perch at the Council for National Policy, she founded a group called Groundswell with the support of Stephen K. Bannon, the hard-line nationalist and former Trump adviser. It holds a weekly meeting of influential conservatives, many of whom work directly on issues that have come before the court.
Ginni Thomas insists, in her council biography, that she and her husband operate in “separate professional lanes,” but those lanes in fact merge with notable frequency.
I am a longtime fan of that dry NYT wit.
The reporting uncovered new details on the Thomases’ ascent: how Trump courted Justice Thomas; how Ginni Thomas used that courtship to gain access to the Oval Office, where her insistent policy and personnel suggestions so aggravated aides that one called her a “wrecking ball” while others put together an opposition-research-style report on her that was obtained by The Times; and the extent to which Justice Thomas flouted judicial-ethics guidance by participating in events hosted by conservative organizations with matters before the court. Those organizations showered the couple with accolades and, in at least one case, used their appearances to attract event fees, donations and new members.
So this ideological corruption was set in stone for the couple long before Ginni Thomas apparently waded hip-deep into the institutional side of the January 6 insurrection. It is now abundantly clear that the effort to overturn the election had a violent side and a sub rosa judicial strategy as well. Whether this constitutes one insurrection or two, they shared the same goal—preventing the elected president from taking office, and inflicting El Caudillo del Mar-A-Lago on the nation for at least another four years.
Any way it gets sliced, the Thomases are over the line.
UPDATE: Joan McCarter has a followup post: It’s Clarence and Ginni Thomas’ Supreme Court now and that’s a danger to democracy.
...Democrats have talked about the need to restore the court’s integrity and the public’s confidence in it, as if that ship hadn’t sailed with the appointment of Trump’s three illegitimate picks. Some have suggested that what they need to help achieve that is a bipartisan vote in the Senate for Biden’s upcoming nominee. As if Republicans hadn’t already packed the court. As if elected Republicans haven’t been willing to do anything and everything in their power to rig the system in their favor.
Republicans secured a compliant Supreme Court majority, one willing to fully embrace the Court's ignominious Jim Crow past, as Thomas has been envisioning for three decades on the court. This is a court majority that wants the minority of the electorate and elected officials to rule.
So that’s it. It’s the Thomas Court now. One Biden appointment is not going to change that. Getting any Republican votes for that one Biden appointee is not going to change that.