UPDATE (March 25, 2022, 10:30 a.m. ET): On Thursday, news broke that the House committee investigating the Jan. 6 riot had obtained many text messages between Ginni Thomas and former White House chief of staff Mark Meadows. In the messages, Thomas urged Meadows to help overturn the 2020 election results and shared election fraud conspiracy theories.
Many Americans have grown increasingly numb from a seemingly endless stream of dispiriting stories highlighting our political leaders’ fading commitment to democracy. However, if anything has the potential to awaken us from our stupor of exhaustion, it must be the recent news that Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, attended the Jan. 6 populist rally at the Ellipse in Washington, which preceded that day's Capitol riot. Not to diminish voters’ very legitimate concerns about America’s elected officials, but politicians and political movements come and go. Without trust in the courts, American democracy does not stand a chance.
It is rare, if not unheard of, for the spouse of a justice to play such a prominent and active role in partisan politics.
As the spouse of a Supreme Court justice, Thomas and her political activities have long raised eyebrows. Thomas is a conservative activist, with close ties to organizations that support many causes and positions that parallel cases that have appeared, and will continue to appear, before the court. It is rare, if not unheard of, for the spouse of a justice to play such a prominent and active role in partisan politics, if only because this might create the potential appearance of impropriety. A judge, of course, is expected to objectively apply the law, without a preconceived commitment to a particular outcome.
The American people, however, are not fools. While we may hope, and believe, that judges make their best effort to remain fair and impartial, people likely understand that the modern Supreme Court decides many issues that overlap with our most deeply held beliefs — whether it is gun rights or abortion, LGBTQ rights or religious freedom. Jan. 6, however, is entirely different terrain.
It turns out that Thomas not only sat on the board of an organization that promoted the dangerous fiction that the 2020 election was “stolen” from former President Donald Trump through fraud, she also attended the rally attempting to vindicate this paranoid propagandistic fantasy (and said she left before Trump took the stage). All the while, in what might resemble the coordinated efforts of synchronized swimmers, husband and wife seemingly sought to thwart the investigation into the democratically perilous events of Jan. 6. Ginni Thomas signed on to a letter seeking the expulsion of Republican Reps. Liz Cheney and Adam Kinzinger from the Republican conference for joining the House Jan. 6 investigation committee; Clarence Thomas was the sole dissenter — standing in opposition to the rest of the court, including its three Trump appointees — in a decision allowing for the release of Jan. 6-related documents to said committee.
From our earliest days as a nation, politicians have elicited well-deserved eye rolls from the American people. Representative democracy and cynicism go hand in hand. Especially in a country as diverse as our own, elected officials have no choice but to seek favor from a multitude of constituencies. Staying in power means telling us what we want to hear, holding a finger to the political winds and shapeshifting when necessary. The framers of the Constitution understood this all too well. It is why they gave us the gift of Article III.
Article III of the Constitution establishes the federal judiciary. Sure, the imposition of federal judges, with their lifetime appointments and freedom from electoral accountability, might appear shockingly undemocratic. But there is enormous power in such freedom: the power to stand as a bulwark of democracy when the other political branches falter. As we look around the world and see the tragic consequences of autocracy, we want to believe the Supreme Court will be there to defend our democratic values, even in times when “the people” seem to be demanding something very different.
No doubt, we also need to be realistic about the limits of our judiciary. Judges, despite being shielded from the political vulnerabilities that make our elected officials so notoriously slippery, are only human. They naturally will have their own outlooks, biases, political preferences and, yes, family members. This is not news. Justice Antonin Scalia, the longtime conservative judicial icon who died in 2016, would frequently stress how important it was for judges to resist the temptation to impose their own personal preferences on the American people, to in effect become mini-legislators.
While hardly perfect, the Supreme Court’s record of defending democracy, even in the face of countervailing political pressures, has been impressive. Whether it was turning back President Harry Truman’s overreach when he attempted to take over the nation’s steel mills during the Korean War, rejecting President Richard Nixon’s efforts to hide his corruption from the American people or resisting President Bill Clinton’s attempt to delay accountability when he was sued over an allegation of sexual harassment, the court has stood up for democratic values. And while a popular narrative on the left may suggest that those days are over, the court — even with its new Republican appointees — did the very same with Trump. It did not agree that Trump’s financial documents should be shielded from judicial scrutiny, nor did it play along with the former president’s meritless efforts to challenge the 2020 election results.
Partisans on both the left and the right will always take issue with many of the court’s decisions. Ideology has always informed constitutional interpretation, and it always will, because we all have a different vision for how we should understand, as Justice Robert Jackson famously put it, the Constitution’s “majestic generalities.”
True, many of the Supreme Court’s election law decisions have rightfully garnered passionate disapproval. Decisions such as Citizens United, which afforded corporations “free speech” rights to make unlimited campaign-related expenditures, or Shelby County, which undermined a large piece of the Voting Rights Act, offer much fodder for criticism. But they were based on good faith disagreements over how the Constitution tells us democracy should function.
There is a stark difference between ideologically informed interpretation and abusing the court’s position to serve raw political power. We have all been witnesses to a staggering amount of political norm violation in the past several years. But if it becomes “normal” to see the court as a potential collaborator in the undermining of our core democratic institutions, we may have reached a point of no return.
As the retiring Justice Stephen Breyer warned us in his wise dissent in Bush v. Gore, a rare decision that diverged from the court’s democracy-sustaining record, the public’s confidence in the court is a hard-earned “public treasure” that we can’t afford to take for granted. For the sake of preserving that confidence, Justice Clarence Thomas should commit to recusing himself from any matters relating to the events of Jan. 6.