The Clarence Thomas Controversy Shows Why the Supreme Court Is Irredeemable

In the wake of revelations that Clarence Thomas and his wife, Virginia, are deeply enmeshed in far-right networks, we shouldn’t shore up the Supreme Court’s legitimacy. We should attack the Court's undemocratic foundations.

Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC. (Drew Angerer / Getty Images)

How do you solve a problem like Virginia Thomas? The wife of Supreme Court justice Clarence Thomas, according to a slate of recent (and not-so-recent) reporting, has spent years enmeshed in right-wing networks directly connected to both her husband and the high court on which he sits. On top of that, evidence collected for the investigation into the January 6, 2021 attack on the US Capitol has revealed that Ms Thomas sent text messages urging Donald Trump’s chief of staff to overturn the election results. (Mr Thomas went on to become the only dissenter in a case where Trump sought to block the inquiry from obtaining sensitive records.)

So what is Democrats’ answer to the “Ginni” question? Milquetoast calls for new ethics rules for the high court. While it is absurd that the Supreme Court lacks such rules — unlike other federal judges, the high court’s justices are not subject to an ethical code of conduct — this narrow focus on ethical indiscretions misses the mark.

As Peter Shamshiri, a lawyer and cohost of the 5-4 podcast, writes in Balls and Strikes, a progressive legal news blog:

The exposure of Thomas’s corruption presents an opportunity. . . . It is time that the Court’s claim to legitimacy be publicly questioned. . . . If you are even nominally on the left, you should have no interest in maintaining the legitimacy of reactionary institutions. Reform is only possible if the Court’s public standing is undermined.

We should use this moment to highlight the now-blatant connection between practical partisan maneuvering and the law, unraveling the pervasive myth that the court is above, beyond, and outside of politics. Rather than shoring up the Supreme Court’s legitimacy, we should attack its foundations — pointing out the fundamentally undemocratic notion of nine judges determining our future and reinvigorating the push to overhaul the Court at a time when plans to do so have all but petered out.

“Major Limitations”

Democratic lawmakers’ response to the Thomases’ actions has been rhetorically and legislatively tepid. Georgia representative Hank Johnson and Rhode Island senator Sheldon Whitehouse have reintroduced a set of bills that would require the Supreme Court to draft its own code of conduct within a hundred eighty days of the bills’ enactment.

“A hundred eighty days of the bills’ enactment” is not exactly the kind of language that indicates a five-alarm judicial fire. And a quote from an anonymous progressive on the House Judiciary Committee to NBC News provides little hope that progressive Democrats will resist establishment hesitation: “There will be a conversation on how to proceed. . . . Some of us are eager to perform some kind of oversight. . . . We totally understand the separation-of-power issues. There are major limitations, obviously. But we can’t just sit on our hands.”

While the Thomases flouted judicial norms and interbranch relations to build and sustain an unprecedented husband-and-wife conservative-judicial-political network, Democratic lawmakers are still citing the very norms (“separation of power issues”) the Thomases ignored.

A better strategy would be to openly challenge the power of the Supreme Court: if the connections between Ginni, Clarence, conservative legal networks, and the Court make one thing clear, it’s that the Right firmly grasps the connection between politics and the law. We should too. But instead of a Supreme Court that upholds the privileges of the rich and powerful, we need a Court that defers to the power of the people.

Of course, this kind of bold pro-democracy stance — which would mean packing the Court and/or stripping the Court of its role as society’s final arbiter — is anathema to a party whose leaders are still under the spell of judicial exceptionalism. House Speaker Nancy Pelosi, for example, told members that “it’s up to an individual justice to decide to recuse himself if his wife is participating in a coup . . .” She went on to note, according to reports, “that under current law, the onus is on justices to hold themselves to account.”

Therefore, the catalyst for restructuring the Court will have to come from outside. And the good news is that the Thomas debacle provides the ideal impetus for popular, mass movement–based change. After all, what better time to scorn an institution and its ideals than amid revelations about its most reactionary member?

Attacking the Court

So how do you solve a problem like Virginia Thomas? For starters, it requires leaving behind “the cult of the robe” and exposing the deeply partisan and destructive nature of Ginni, Clarence, and the conservative supermajority.

In an interview, Sarah Lipton-Lubet — executive director of Take Back the Court, a progressive group whose mission is to “inform the public about the danger that the Supreme Court poses to democracy, and about the viability of court expansion” — argued: “Everything from demanding that Thomas recuse himself to that he resign is now on the table. . . . It’s never been more clear that the Court cannot continue to function as it does now, with little transparency and zero accountability to the public.”

Lipton-Lubet also took aim at another official, one who is often praised as a sober institutionalist rather than the leader of a revanchist court: Chief Justice John Roberts. “Roberts claims to be concerned with the current nosedive in public trust in the Supreme Court — yet he has allowed this flagrant violation of ethics to happen in plain sight,” Lipton-Lubet wrote in an email. “He owes the American people an explanation for his own failure to protect justice and democracy.”

Above all, a mass campaign to weaken the Court must be broad in focus. While the Thomases’ misdeeds can be the catalyst, our demands should go far beyond a single justice. We should ask ourselves what we want from our high court, including whether we want a high court at all. And we should dismantle the Court’s function as a cordoned-off bulwark to progress and begin creating a more democratic system in its place — one that aids the marginalized and empowers ordinary workers, not moneyed interests.