Legal scholar slams Clarence Thomas’ disturbing 'conflicts of interest' and 'naked partisanship'

Between the likely demise of Roe v. Wade, Christine Blasey Ford’s allegations against Justice Brett Kavanaugh in 2018, and the hyper-partisan antics of Sen. Mitch McConnell, the Federalist Society and former President Donald Trump, the U.S. Supreme Court has found its reputation becoming increasingly tarnished. And to make matters worse, Justice Clarence Thomas’ wife, Ginni Thomas, is a far-right activist/conspiracy theorist who wanted the 2020 presidential election results overturned —a conflict of interest that Austin Sarat, known for his expertise on jurisprudence and political science at Amherst College, addresses in an article published by the Verdict website on May 23.

“Seldom in recent memory has the off-the-bench conduct of a Supreme Court justice or their spouse caused the kind of trouble generated by the recent behavior of Clarence and Virginia ‘Ginni’ Thomas,” Sarat explains. “They have exposed the naked partisanship that lies just below the surface of today’s Supreme Court. They have lent both tacit and overt support to former President Trump’s election lie. Justice Thomas also has undermined the appearance of collegiality that justices typically carefully cultivate. The justice and his wife have damaged the Court at a time of declining public confidence in this institution.”

According to Sarat, the “partisanship” of Ginni Thomas “goes well beyond anything done by any previous Supreme Court spouse.”

“In 2009, she founded Liberty Central, a conservative political advocacy group,” Sarat notes. “The New York Times notes that the group was dedicated to opposing what she characterizes as the leftist ‘tyranny’ of President Obama and Democrats in Congress. The Times described her work as ‘the most partisan role ever for a spouse of a justice on the nation’s highest court.’”

Sarat continues, “Ginni Thomas endorsed Texas Sen. Ted Cruz in the 2016 Republican presidential primaries. She hoped to see an experienced, conservative, anti-establishment combatant occupy the Oval Office…. Throughout the Trump Administration, she played an active role in lobbying for various conservative projects and advising the former president on personnel matters.”

Even more “unsettling,” Sarat adds, is Ginni Thomas’ “role in aiding Trump’s effort to subvert the very constitutional order that her husband has sworn to protect.”

“News reports indicate that she exchanged at least 29 text messages with former White House Chief of Staff Mark Meadows, ‘urging disruption of the November 2020 election results favoring President Joe Biden,’” Sarat notes. “And, according to the Washington Post, she actively lobbied Arizona legislators ‘to set aside Joe Biden’s popular-vote victory and choose ‘a clean slate of Electors.’”

Sarat continues, “As the Post puts it, ‘In sending the e-mails, Thomas played a role in the extraordinary scheme to keep Trump in office by substituting the will of legislatures for the will of voters.’ This activity raises a serious conflict of interest problem for Justice Thomas in any case involving the 2020 election.”

During a recent speech, Sarat notes, Thomas made a “thinly veiled attack” on Chief Justice John Roberts.

“The once famously taciturn justice is now saying too much about his particular brand of ‘grievance conservatism,’” Sarat observes. “But he is remaining silent about much more important conflicts of interest created by his wife’s efforts to undo the results of a free and fair election. What Justice Thomas says, and refuses to say, reveals a lot about his faltering commitment to the rule of law and to constitutional governance in this country.”

New York Times opinion writer Jesse Wegman is equally critical of Justice Thomas in an op-ed published on May 15.

“There is no question that the Court has become politicized, to its and the nation’s great detriment,” Wegman writes. “But to be subjected to a lecture on that fact by Clarence Thomas, of all people, is like listening to a plutocrat lounging by his infinity pool in a bathrobe, eating a gold-plated steak while bemoaning the horrors of extreme income inequality. Has it really not occurred to the justice that by giving partisan political speeches in partisan political environments, he is precisely what is damaging the integrity of the Supreme Court?”

Wegman concludes the op-ed by stressing that the Supreme Court’s reputation will continue to suffer as long as Justice Thomas behaves in an unapologetically “partisan” fashion.

“The Supreme Court is not there to vindicate the demands of the majority, but neither is it there to thumb its nose at that majority again and again, in a nakedly partisan way,” Wegman argues. “If Justice Thomas is genuinely concerned about the eroding faith in his own institution, the first thing he can do is look in the mirror. The next thing he can do — I’ll say it again — is step aside.