Clarence Thomas, Resign
For the Good of the Constitution, He Must Step Down
I hail from a proud legal family. My sister’s a public defender, my mother’s an attorney. And my father made his career as a prosecutor, county judge, and Supreme Court Justice in New York. My folks are moderate conservatives who believe in classical liberalism and public institutions. In our house, dinner conversations often revolved around politics, government, and current events (as well as the dicey subject of what happened at school). My siblings and I imbibed the importance of the rule of law, the electoral process, and the justice system. After all, few things are more democratic than trial by jury.
DAs and judges are elected in New York, and my folks joined the GOP in the ‘80s to let my dad run. But while his name appeared under Republican on the ballot, he took strict measures to abstain from any political activity outside his campaigns. Part of this was to adhere to the state’s judicial code of conduct. But most of it was about following his own moral compass. My father’s a man of impeccable ethics. Over his tenure, he bent over backwards to ensure not only that he stayed in bounds, but also that nothing he did would create even the appearance of impropriety. He guarded his integrity and that of the courts fiercely. He wanted the public to rest assured that when he took his seat each day on the bench, his decisions were impartial. He took his oath so seriously he wouldn’t even get his kids out of parking tickets—of which there were several!
This cute commercial won an election:
This code applied not just to him, but to the whole family. Like it or not, when your spouse or parent is a public official, your behavior reflects on them. This proved onerous at times for me and my siblings, growing up in a tiny town where any waywardness reached home before we did. The higher standard felt unfair, but even as youths, we grasped its significance. It was the price of power. And when it came to my mom, my folks took pains to ensure that nothing she did professionally would cause him a whiff of controversy. Again, this meant following written rules and regulations. But it also meant honoring the tenor of the law, not just the text—going above and beyond the bare minimum.
Over the years, my mom has had strong opinions of her own. And she’s expressed them through prudent political activity. When it came to their jobs, she and my dad discussed cases daily—they were each other’s chief sounding board. Hell, they practiced law together before he became a judge. Such counsel, conducted in confidence, is to be expected in a marriage of equals—especially with spouses who share the same field. But once he was elected, they put an iron wall between their careers. Though employed as a state Attorney General and county counselor, she ensured that her work wouldn’t bleed into his domain. This inevitably limited her opportunities. But she restrained herself because she believed in him and the principles of good government. It was a sacrifice she made for the benefit of the people and the strength of the system. When my folks called themselves public servants, they meant it.
II.
Which is why Clarence Thomas must go. It’s one thing for your spouse to engage in proper, even strident, political advocacy. But the Justice and his wife, Ginni, blew past that long ago. We have now learned, thanks to astonishing reporting by The New York Times Magazine, that Ginni Thomas has, for years, traded on her husband’s position to exert undue influence in the highest corridors of power. The article is dense and detailed—I urge you to read it. Here are some lowlights: From the beginning of her marriage to Clarence—they met in 1986 at an anti-affirmative action conference—Ginni tied his legal career to her advancement. This began in mainstream conservative institutions like the Heritage Foundation and the U.S. Chamber of Commerce. But it reached new levels in recent decades. In 2013, she founded—not joined, founded—the organization Groundswell, an influential reactionary group that crafts Republican strategy. She consulted figures like Steve Bannon, who described the organization as laying the foundation for the rise of Donald Trump. Even though Ginni opposed the Manhattan con man at first (she supported Ted Cruz and called Trump unfit for office) she soon became his acolyte.
In addition, she sits on the board of CNP Action, an arm of The Council for National Policy. The CNP is a secretive organization of elites who exert outsize pressure on Congress. As the article puts it, “during Trump’s presidency…the council and its affiliates routinely took on issues that were likely to go before the Supreme Court.” The potential conflicts of interest for Justice Thomas created by this activity have “little precedent.” Beyond that, after the 2020 election, the CNP “instructed members to pressure Republican lawmakers into challenging the election results and appointing alternate slates of electors.” If successful, this plan would most certainly have landed at the Court. Clarence would likely have deemed such an effort constitutional—he issued a scathing dissent after the Court refused to take up an election case from Pennsylvania.
But it gets even more gobsmacking. In late 2018, after the bitter confirmation hearings for Brett Kavanaugh, Trump invited Justice Thomas to the White House for a “working lunch.” The judge accepted, the first of many such pow-wows. This, in my book, is an instant red flag. What’s a President—the leader of a political party, subject to the Court’s direct oversight—doing soliciting a sitting Justice? And what’s a Justice doing taking the meetings? If Clarence Thomas had any sense of propriety, he would’ve turned down these requests—especially knowing Trump’s ethical history.
You couldn’t get my dad within five miles of Donald Trump—a malignant narcissist who represents the antithesis of everything my father is and worked for—unless to preside at his criminal trial (may it come soon). Trump wouldn’t be the first kingpin my dad’s put away. But Clarence Thomas, like many appellate judges, has never heard a case in his life. Maybe that’s why he couldn’t see a crook right in front of him. For he not only accepted Trump’s overtures, but eventually brought his wife along, too— uninvited. The article makes clear why: so she could obtain personal access to the President.
Which is what she got. Starting in January 2019, Ginni had regular meetings with Trump in her capacity at Groundswell, with members of the group accompanying. Among other affronts, she lobbied the President on issues that went before the Court. She also pushed him to hand government posts to her favorites (including former Thomas clerks), provided lists of candidates for judgeships, and fingered people he should purge for disloyalty (she even set up a sting operation to ruin H.R. McMaster). Many of her candidates failed background checks or had other significant problems. Ginni’s behavior crossed so many lines that even aides to Trump—Trump!—took measures to stop her behind his back.
Then a little over week ago, the other shoe exploded. Journalists Bob Woodward and Robert Costa disclosed in The Washington Post that in the days following the 2020 election, Ginni sent a string of texts to Mark Meadows, Trump’s chief of staff. These went to his personal phone, not his government device. Her relationship with Meadows goes back to their days in the Tea Party. I’ll leave it to you to read the entire exchange. By way of summary, she peddles absurd electoral fantasies (some linked to QAnon) and advocates that Meadows and Trump work to overturn the will of the American people. She parrots Trump’s Big Lie that the election was fraudulent, and, among other demands, calls for Republican members of Congress to join protestors in the streets and nullify the result.
The texts have an unexplained gap from Nov. 24th to Jan. 10th, 2021—before, during, and after the attempted coup of Jan. 6th. On Jan. 10th, four days after the riot, Ginni admitted to Meadows that she attended the “Stop the Steal” rally (though claims to have left before the assault began). We don’t know what she texted him in the days leading up to the rally or during the insurrection. On Jan. 10th, she claimed that the mob was not “representative” of “our great teams of patriots for DJT!!” (even though she took to Facebook during the rally to write “LOVE MAGA people!!!” and “GOD BLESS EACH OF YOU STANDING UP or PRAYING”).
Apparently, she ignored or forgot the fact that Trump himself ordered the attack from the podium. Yet instead of denouncing the President for his fascist assault on Congress, she expressed anger at Mike Pence for doing his duty and certifying the result. “We are living through what feels like the end of America,” she texted Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams.”
I could go on. I urge you to read the Times and Post pieces yourself, as well as the staggering profile by Jane Mayer in The New Yorker. Ginni’s toned down her activity since Jan. 6th, though not by much. She signed an open letter for the Conservative Action Project, for example, calling on Republicans to oust Reps. Liz Cheney and Adam Kinzinger for having the gall to serve on the House committee investigating the insurrection. Again, this is with her husband issuing rulings from the bench that pertain to that investigation.
III.
“To see what is in front of one’s nose needs a constant struggle,” George Orwell said. Let’s stop and stare at what lies before us. It’s disturbing on multiple levels. There’s the obvious concern about Ginni Thomas’s psychological state. In these texts, she exhibits paranoid and other pathological tendencies, her grip on reality tenuous. She traffics in wild conspiracy theories and cites figures who’ve claimed that the mass shooting at Sandy Hook was a “false flag” operation. As the conservative Evangelical lawyer David French put it in his newsletter, if you had a family member making these claims, you’d worry for her sanity. I don’t know the roots of her mental damage—she had a reactionary, domineering mother and a terrible experience in a cult (before Trump’s). But, clearly, there are deep psychic issues at play.
Then there’s her twisting of religion. In these texts, she displays a Christian nationalism that takes on apocalyptic themes. She denounces fellow Americans who voted for a different party as enemies in a war to destroy the nation. She prays to God to intervene in the election (what’s He supposed to do, smite Pence?). Look, I’m a Christian (though I fail daily), and my faith infuses my socialist politics. While I believe strongly in the separation of church and state, I don’t think religion should be banished from the public square, or that believers must check their convictions at the civic door. When practiced in a loving, reasonable way, faith helps articulate and build the common good. Christians have a duty to engage in civic activities to create the just society God wants—even unto civil disobedience. Think of the Civil Rights movement. But the kind of theology Thomas displays here perverts both the Gospel and politics. As French says, it borders on the theocratic. Christians pray for their enemies to be converted—they don’t call upon God to cancel their votes.
Even more serious than this, though, is the political damage. Here we have the spouse of a Justice of the Supreme Court—an independent branch of government—directly advising and pressuring the Executive branch, and conspiring with members of the Legislative one, to thwart a national election. Ginni even admits to communicating with Jared Kushner, Trump’s son-in-law and consigliere. And if that’s not horrifying enough, consider this: the only reason the public now knows about this activity is because the Supreme Court ordered the Trump administration to hand over a trove of communications to the Congressional committee investigating January 6th. The Court ruled 8-1. The lone dissenter? Clarence Thomas. You know what that looks like? It looks like a Justice trying to launder his wife’s dirty clothes.
For Ginni and Clarence Thomas to wield their power in this way about any public issue would violate the heart of the Constitution, which is founded on the separation of powers. But to do it about overturning the election of the President—to the point of advocating extra-legal means—makes for a profound crisis of legitimacy. If you saw this happening in another country, you’d conclude that the rule of law, constitutional norms, and the principles of liberal government were being trampled. You’d label such a regime a banana republic, and you’d be right.
You may argue that the Justice and his wife haven't violated any laws. And the Court, astoundingly, has no official code of conduct. But this reasoning is cynical and gross. Is that the kind of hair splitting we teach our kids? No statute prevented George Washington from seeking a third term. Yet he stepped down for the greater good. I’m sure no one thought to create a code for the Court because the Constitution is predicated on the fact that Justices remain above board. It’s like arguing that it’s ok to shoot the goalie in a soccer match because there’s no rule against it. You can’t make a law for every scenario. At a fundamental level, the government—especially the judiciary—depends on trust. While adhering to the letter of the law, the Thomases have killed its spirit.
And with regard to the legality of their actions, don’t be sure they’re clean. Over the years, Clarence Thomas has headlined several fundraisers for political organizations. The federal judicial code of conduct, adopted in 1973, restricts judges from being “a speaker, a guest of honor or featured on the program” at fund-raising events. As the Times states, while the code “doesn’t officially apply to the nine Justices,” Chief Justice John Roberts (who must be mortified) said in a 2011 report that the justices “do in fact consult” it when “assessing their ethical obligations.” In addition, the Thomases failed to disclose hundreds of thousands of dollars in income Ginni received for her political work (when exposed, they amended their tax filings). And lastly, the House committee on Jan. 6th has just alleged that Trump engaged in a criminal conspiracy to defraud the American people. This makes the gap in Ginni’s text messages to Meadows all the more damning. What did she advise in the days leading up to and during the insurrection? How deeply is she implicated in the plot?
IV.
The Thomases, of all people, should know better. Clarence built his career on “originalism,” which purports to interpret the Constitution with the intent of the Founders. Antonin Scalia was the intellectual godfather of this jurisprudence—a slavish, pious, pharisaical reading of the text that (surprise, surprise) attracts dogmatic Catholics like Amy Coney Barrett and Robert George. But Justice Thomas took the methodology to an extreme that made even Scalia blush. For years, he refused to ask a question during oral argument, letting Scalia lead the attack. But his colleague’s untimely death in 2016 seemed to rouse him. Originalism is bunk (see the episode of In the Past Lane below). But I’ve always had a begrudging respect for Clarence’s principled (if intransigent) adherence. Now his hypocrisy stinks.
By his own logic, he’s betrayed our founding charter. What would Madison, Franklin, and John Marshall say if they witnessed the Thomases’ behavior? They’d say something is rotten in the state of Denmark. Contrary to originalism, the Framers themselves fought bitterly over the meaning of the Constitution. But I’m pretty sure they’d all agree that the wife of a Supreme Court Justice shouldn’t conspire with the Chief Executive to create policy and overthrow Congress. They deplored the rise of factions (even as they built political parties), seeing them as the kiss of death to checks and balances. Yet here we have a spouse of a Justice treating with the President to advance her political agenda. As Hamilton said, the Courts have neither the power of the sword nor of the purse. Their authority comes only from the goodwill of the public. Today, the Supreme Court is the most unpopular it’s ever been in modern times.
Conservatives should be first in line to call for Thomas to recuse himself from cases involving the election. Nothing could be more fundamental to conservatism than the rule of law, the independence of the judiciary, and the separation of powers. Conservatives hail the Founders as geniuses and declare strict fidelity to the Constitution. They’re the side that opposes revolution and violent upheaval in favor of moderate reform. Yet here’s a powerful woman advocating to the President that members of Congress take to the streets to stop a legitimate election, while her husband rules on its legality. The Thomases’s crusade is, quite literally, judicial activism—which conservatives pretend to oppose.
Several legal scholars are now urging Clarence Thomas to recuse himself. A federal law requires the Justices to recuse themselves in any case “in which [their] impartiality might reasonably be questioned” and in a variety of specific situations—including, among others, when they know that their spouse has “an interest that could be substantially affected by the outcome of the proceeding.” Even if the Thomases are technically in the clear, think of the optics. As a Justice, you should strive to safeguard the image of the Court, not come as close to corruption as possible without crossing the line. That would allow any plaintiff before the Court to conclude, with reason, that the black robes have their fingers on scales.
Some authentic conservatives are raising concerns, like French and commentators at The Bulwark. But most are playing defense. National Review, The Federalist, and The Wall Street Journal are all casting these revelations as a smear campaign. A conservative friend of mine—affluent, highly educated, with a professional career—texted me that the people in the wrong are Democrats calling for Thomas to recuse himself. “For all their screaming about the end of democracy,” my friend wrote, “they really seem to be doing their best to undermine it.” Let me reiterate that: asking a Justice to step down after his wife lobbied the President’s chief of staff to thwart an election is undermining democracy—not, you know, her involvement with an armed revolt. Just when you think our tribalist death spiral has hit rock bottom, we sink further.
Yes, the left—of which I count myself a member—engages in its own illiberalism and constitutional brinksmanship. Cancel culture, the suppression of free speech, the assault on the Western intellectual tradition, and the denial of objective truth by post-modernists, are toxic to a free society. Like Trumpism, the woke movement amounts to pagan religious fanaticism. Its leaders have designs on government that smack of Orwell’s Thought Police.1 And of course, many of our public officials are dirty—including Democrats. Just last week, the Times ran an article documenting Sen. Joe Manchin’s own graft and conflicts of interest.2 The millions that Big Pharma has poured into the coffers of corporate Democrats might explain why they oppose Medicare for All. As Willie Stark says in All the King’s Men, there’s something on everybody.3
If this is what Ginni Thomas thinks she’s fighting, I understand. But as bad as elements of the left may be, you can’t excuse your side’s crimes by saying the other one does it, too. That’s the logic of petulant children. By adopting her opponents’ Manichaean mindset, Ginni—like many on the right—has exceeded them in zeal.4 And if conservatives believe that reforms like abolishing the filibuster or packing the Court are unconscionable encroachments on procedure, what are they doing defending the Thomases? If the shoe was on the other foot—if Justice Sotomayor had a spouse lobbying Joe Biden—they’d be howling.
V.
If this is a smear campaign, by the way, the Thomases have few to blame but themselves. They haven’t just handed their enemies ammunition—they’ve given them a howitzer. You’d think after what they went through at his confirmation hearings, they’d have the pride, honor, and dignity to keep a low profile and take every precaution. But when you read the articles, you see that they chose the opposite: vengeance. I can’t imagine the trauma that Ginni experienced at those hearings in 1991, though (as with Bill Clinton) I doubt it approaches the pain her husband caused Anita Hill, PhD, and the other women he sexually harassed (and then lied about under oath). Her devotion to him is real and, clearly, very deep—to the point of calling Prof. Hill, twenty years later, to demand an apology.
That’s what makes the defense that they’re separate people ring hollow. Of course they know each other’s beliefs and actions—just as my parents confided in each other about their jobs. The Thomases openly call themselves “best friends” and, more creepily, an “amalgam.” You may say that’s love, but love can blind. And in their case, it’s turned to poison. It’s fine to advise and counsel in the marital bedroom, and for a wife of a Justice to have her own career. But it’s another to exploit that relationship for political gain, and money. Macchiavelli himself would be aghast. My mother would never in a million years have thought to use my dad’s position to advance her pet projects—especially if she knew he had the ability to legitimate those projects from the bench. You don’t need Jiminy Cricket to tell you that’s wrong. Or a degree in con law.
“Power tends to corrupt,” Lord Acton said. “And absolute power corrupts absolutely.” The Supreme Court is about as close to absolute power as you can get. With the exception of the Warren Court, it’s functioned an anti-democratic tribunal. But the Thomases have abused their privilege to a degree unseen in its history. While we may empathize, we cannot sympathize—let alone excuse. Should Clarence Thomas be impeached? On the merits, the answer is yes—particularly if those missing texts further incriminate his wife. No other Supreme Court Justice and his wife have committed these kinds of acts. Most, like the husband of Ruth Bader Ginsburg or the wife of John Roberts, surrender their chosen professions once their spouse is on the Court. John Nichols makes the case for impeachment over at The Nation.
The problem is that impeachment, as we’ve seen, is so brutal, consuming, and divisive that to pursue it could break the Court. It’s like trying to stop Putin without initiating nuclear war. There’s a simple solution: Thomas must resign. This would spare the country, repair the breach, and protect his fellow Justices. It wouldn’t alter the balance of power on the bench—conservatives would still have a majority, though it would allow Roberts to become the swing vote again and steer the Court toward narrow rulings. And replacing him with another Biden pick would only be fitting after Mitch McConnell, in another unconstitutional act, denied President Obama a Justice. As a sign of unity—and to break the national fever—Biden could create a blue-ribbon committee to name a replacement. The republic hangs by a thread—a noble resignation could pull us back from the brink.
Justice Thomas is an enigma. He grew up in poverty in the segregated South and became a Black nationalist as an undergraduate. Corey Robin argues that Thomas actually maintains the separatist beliefs of Malcolm X to this day.5 Most scholars, however, consider him an arch-conservative. As a graduate of the College of the Holy Cross, I took a kind of fascination in counting Thomas as a fellow alum. Though I’m much prouder of graduates like Michael Harrington and (especially now) Dr. Anthony Fauci, Thomas’s story intrigued me. He was among a cadre of Black men recruited in 1968 by John Brooks, the college’s legendary Jesuit president. Many of them have gone on to distinguished careers in their fields. With these revelations, though, he’s brought shame to alma mater and disgrace to the Court. If Fr. Brooks were alive, he might prescribe a life of prayer and penance to the Justice and his wife—after all, they’re Catholics. The motto of Holy Cross is in hoc signo vinces—“in this sign you shall conquer.” The cross is a symbol of sacrificing yourself for others. Clarence Thomas, make the sign.
Prof. Ibram X. Kendi, for example, wants to amend the Constitution to establish a Department of Anti-Racism that would, among other mandates, “monitor public officials for expressions of racist ideas” and “be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.” Emphasis mine.
Not only does he rake in half a million dollars a year from stocks in the coal industry, he literally owns a coal plant that sells gob to energy companies that lobby the Senate against environmental regulation. This just might have something to do with his decision to kill the Build Back Better act, which contained the most aggressive anti-fossil fuel measures in American history.
This corruption is the very reason we must replace elections and politicians with democratic lotteries. It’s why I wrote a piece about the Supreme Court advocating the same.
Critical-race theory may threaten a liberal education, for example, but the Republicans’ anti-CRT laws are even worse.
According to Rubin, Thomas was against interracial marriage until he met Ginni. He opposes affirmative action, Rubin argues, not because it’s “reverse racism” (as conservatives claim) but because it amounts to a form of white supremacy. It allows exclusive, white institutions to justify their privilege through paternalism. Likewise, he believes that to mandate the integration of schools implies that Black institutions—and thus Blacks—are inherently inferior. Ironically, his conclusion that white racism is an indelible fact of American society coheres with critical race theory and the Black Lives Matter movement. But from this shared radical starting point, he argues to conservative conclusions. And does he argue: he writes an average of thirty-four opinions per term, more than any other Justice.
“Release the Kraken!” And yank these criminals from office. . . And their criminal wives, too.