Radicalization, politicization, lack of accountability and ethical improprieties are destroying the court’s legitimacy.
Testimony last week before the January 6 congressional committee by Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, highlighted the increasing politicisation of the court as its new term begins this week. That poses unprecedented challenges for the court itself, the rest of the government and the US system as a whole.
The court is no longer a trusted arbiter – if it ever fully was – of US constitutional law. Neither is it, as Chief Justice John Roberts claimed, using a baseball analogy, an umpire “calling balls and strikes”. Instead, it’s now the primary lightning rod in the US political landscape, especially since former president Donald Trump is a private citizen.
The court has become the epicentre of right-wing radicalism, in many cases out of step with public opinion. Though Mr Roberts complains it’s unfair to cast doubt on the court’s probity simply because one doesn’t agree with its opinions, in fact the court is behaving in a highly unusual manner. Controversial and ground-breaking rulings of the past were usually undertaken unanimously, or at least overwhelmingly. Now it’s a matter of 5-4 or, at best, 6-3.
The affair of Mrs Thomas is a good indicator of how bizarre things have become.
She was summoned before the committee because of numerous text messages she exchanged with then White House chief of staff Mark Meadows, communications with Republican officials in key swing states urging them to overturn the election of Joe Biden and, especially, her apparently extensive interactions with attorney John Eastman, alleged architect of the primary coup plot involving slates of false electors from key states.
Her text messages with Mr Meadows – that he provided to the committee and were made public in March before he abruptly ended his co-operation – reveal a right-wing activist untethered from reality.
She draws heavily on conspiracy theories, including this extraordinary regurgitation of QAnon delusions: “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.” To this deranged delusion she added: “I hope this is true.”
She seems to have been particularly focused on a conspiracy theory that “watermarked ballots in over 12 states have been part of a huge Trump & military white hat sting operation in 12 key battleground states”. She told Mr Meadows that “we are living through what feels like the end of America” and that the election was “the greatest heist of our history”.
But perhaps the most chilling comment for the wife of a Supreme Court Justice was her insistence the country is at war and “the most important thing you can realise right now is that there are no rules in war”.
The only thing that has been revealed about her committee testimony is that she apparently remains convinced that the election was somehow “stolen” by Mr Biden, although it is unclear which of many potential implausible conspiracy theories she currently embraces.
But does it matter what the spouse of a powerful person says and does? It certainly can, especially in the case of a judge.
While she insists she never discusses her political work or any of his pending cases with him, there’s plenty of wiggle room in her phraseology – and, besides, there are apparently no rules in war. Both spouses have described themselves as “one being”, and as being each other’s “best friend”. And in one of her text messages, she specifically mentions having discussed election-related issues with “my best friend”.
Mr Thomas has already failed to recuse himself in a Supreme Court ruling in which he was the only justice to oppose allowing the committee to access the trove of documents including these text messages involving his wife.
Given what is now known about her extensive involvement, at least as a cheerleader, in the extensive effort to overthrow the election, Mr Thomas is duty and honour bound to henceforth recuse himself from all related cases. After all, she would most likely not have had the attention of Mr Meadows were she not his wife.
But there is no reason to believe that he will live up to that ethical obligation. And there are virtually no ethical rules binding on Supreme Court justices.
Mr Thomas is a key member of the five (occasionally six) member right-wing majority that has been gutting precedent and smashing its own “originalist” or “textualist” approaches in order to reach ideologically and religiously driven conclusions overturning the long-established right of women to an early-term abortion, prohibiting states from restricting loaded firearms in public places, and a raft of other decisions that are based on personal preferences and not the law or the Constitution.
The next term could be even worse.
The radical majority appears poised to eliminate affirmative action programmes to counter racial discrimination, gut the authority of the Environmental Protection Agency, authorise discrimination against sexual minorities in the name of religious beliefs, destroy one of the last remaining effective parts of the 1964 voting rights act (Section 2), and, most alarmingly, potentially codify into law the once-fringe independent state legislature theory. This theory holds that, because the Constitution empowers state legislatures to organise elections, they are subject to no oversight whatsoever, including by courts, and are not bound even by their own state constitutions.
If that theory is made part of constitutional law, as seems entirely possible, it could open the floodgates to election subversion, effectively authorising majorities in state legislatures to micromanage and interfere with decisions by election officials, and even reject election results certified by governors. This is precisely what Mr Eastman – reportedly with the encouragement of Mrs Thomas – was trying to engineer in key states after the 2020 election.
The US Supreme Court has in recent months been sullied by ideological fanaticism. And Mrs Thomas appears to have exalted company, some perhaps quite close to home, in hallucinating that America is embroiled in a civil conflict so dire that “there are no rules”.