U.S. Supreme Court spouse Virginia “Ginni” Thomas has proven to be a full-throated insurrectionist, intent on launching a coup to overthrow the results of the 2020 election. She wasn’t just posting on MAGA message boards about “stopping the steal.” She was lobbying Republican state lawmakers in Arizona—29 of them—to throw out their state’s election and choose their own, pro-Trump, presidential electors.
That’s just Arizona. We don’t know yet whether there were other states where she was urging Republicans to “stand strong in the face of political and media pressure” because the responsibility to choose electors was “yours and yours alone” and they needed to use their “power to fight back against fraud” and “ensure that a clean slate of Electors is chosen.” That is, we don’t know which states’ legislators she was lobbying—and it is really unlikely to be just Arizona.
Which brings us to her husband, Clarence, the Supreme Court Justice who has endorsed one of the whack-job legal theories the Trump team pushed to overthrow the 2020 election in Pennsylvania and elsewhere: the “independent state legislature” theory. That idea, as the Brennan Center explains, is “a reading of the Constitution, pushed in recent years by a small group of advocates, that would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws.” Or, in the case of the 2020 election, authority over state courts in deciding election law.
“The dispute hinges on how to understand the word ‘legislature,’” as the Constitution intended. “The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations,” the Brennan Center continues. “So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.”
The independent state legislature theory throws that out, arguing that instead the clauses in the Constitution pertaining to the states’ conduct of elections have “exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.” There goes voting rights protections at the state and federal level.
“Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.” There’s little indication that that’s not precisely what the radicals on the Court would allow.
It’s not just Thomas. When the Supreme Court was presented the opportunity with North Carolina and Pennsylvania gerrymandering cases in March, Thomas, Samuel Alito, and Neil Gorsuch wanted to hear them. The Supreme Court turned down the emergency application by Republicans in the states seeking to have congressional maps drawn by courts blocked. The Court refused to hear them in the shadow docket. But a fourth justice, Brett Kavanaugh, essentially invited the state Republicans to come back and ask for a hearing. North Carolina has, and the court is now about to announce that they’ll take it up. A betting person would guess they take it—the four justices needed to grant cert for the case are there, and a fifth, Amy Coney Barrett, would almost certainly adopt this ridiculous theory.
There’s no constraint on the radicals as it stands. Not until the Congress and the executive branch reclaim their power as co-equal branches of government, and put some limitations on it. A heck of a good way to start would be with hearings investigating Thomas, the walking conflict of interest and danger to the republic, and his insurrectionist wife.
Congress can start building the case for expanding the Supreme Court by reasserting its power. This would be a fine way to start.
We speak with Elie Mystal on Daily Kos' The Brief podcast