Justices of the Supreme Court have been attacked for their rulings and for their alleged partisanship since the beginning of the United States. As recently as the fall of 2021, Justice Sonia Sotomayor made a preemptive attack on her fellow Justices during oral arguments in the case of Women’s Health v. Jackson when she observed, in anticipation of a ruling limiting or reversing Roe v. Wade, that the Supreme Court might not “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts.”
Too many others have piled on to list here but virtually none of the attacks have defended Roe v. Wade and subsequent abortion jurisprudence on the merits of its legal reasoning in interpreting the Constitution.
We don’t need to remind you of the vicious attacks on Justice Kavanaugh during his confirmation hearings and the attacks on Justice Barrett during her confirmation hearing for supposedly advocating for political policies resembling the society in the Handmaidens Tale. We have all witnessed the increasing drumbeat from the Left that the Court is now a political body.
In a new front of attack on the legitimacy of the Supreme Court, Ginni Thomas, the wife of Justice Clarence Thomas, has come under attack and many on the Left have called for Justice Thomas to recuse himself from all cases dealing with issues in which Ms. Thomas has expressed a public opinion or in which groups with which Ms. Thomas is affiliated have taken a political stance or filed an amicus brief in pending cases.
The question is why is there a sudden interest in Ginni Thomas and a sudden concern about judicial ethics and a sudden treatment of Justice Thomas and his wife Gini Thomas as one person? Before I return to that question, consider this sample of the attacks on Ginni Thomas just in the last 2 months:
- On January 27, NPR ran a piece titled “How Ginni Thomas, Wife of Justice Clarence Thomas, Influences the Supreme Court.” NPR reports that “Ginni Thomas holds extreme right wing views.” As an example of her allegedly improper influence, they cite the fact that she’s on the Board of the National Association of Scholars, which has filed an amicus brief in a case questioning the constitutionality of “race conscious” admissions programs at Harvard and the University of North Carolina.
- On January 31, The Washington Post ran a piece titled “Critics Say Ginni Thomas’s Activism is a Supreme Court Conflict. Only Her Husband Can Decide if That’s True.” This article cites the fact that Ginni Thomas was a signatory on a letter blasting the January 6 Committee and then Justice Thomas took part in a decision in a case brought by former President Trump in which he asked that certain White House records not be released to the Committee.
- On January 31, The New Yorker published an article titled “Is Ginni Thomas a Threat to the Supreme Court?” The New Yorker took the position that: “The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, who wife is a vocal right wing activist. She has declared that America is in existential danger because of the ‘deep state’ and the ‘fascist left’.” They go on to say that her “political activism has caused controversy for years” but “now the Court appears likely to secure victories for her allies in a number of highly polarizing areas—on abortion, affirmative action and gun rights.”
- On February 4, CNN published an article titled “Ginni Thomas’s Political Activism Brings Scrutiny to Justice Clarence Thomas and the Supreme Court’s Recusal Rules.” They say that: “Recent revelations about the political activism of Ginni Thomas, wife of Justice Clarence Thomas, has renewed scrutiny about how the Supreme Court approaches questions of potential conflicts of interest with the cases the justices are reviewing.”
- On February 6, ABC News ran a story titled “Ginni and Clarence Thomas Draw Questions About Supreme Court Ethics.” In this piece they tell us that “Clarence Thomas, the US Supreme Court’s most senior Justice, long celebrated by conservatives and reviled by liberals, is facing renewed scrutiny for potential conflicts of interest as he helms the court’s newly empowered conservative majority and as public opinion of the court slumps to a historic low.” They then add: “Independent ethics watchdogs have raiser new questions about the activism of Clarence Thomas’s wife of 34 years.” Further they say: “Thomas sits on the advisory board of a group that opposes affirmative action that filed a Supreme Court amicus brief in cases the Justices recently agreed to take up.” They claim that in an unverified email, Ms. Thomas asked Florida Governor Ron DeSantis to attend a meeting of activists” to discuss overturning the 2020 election.
- On February 8, The Nation published an article titled “Clarence and Ginni Thomas, the Supreme Court’s Unethical ‘It’ Couple.” The Nation thesis is that a politically active wife of a Supreme Court Justice should not be involved in matters that may be before the Court or the Justice must recuse himself of all such matters.
- On February 22, the New York Times Magazine published an article titled “The Long Crusade of Clarence and Ginni Thomas.” In it, they claim that Ginni Thomas “even came to the White House for what was supposed to be a private lunch between Trump and her husband in 2019”
- On February 22, Esquire magazine ran a piece titled “The Curious Case of Ginni Thomas.” In it, they cited the New York Times Magazine article. Esquire then calls Ginni Thomas “an all-around wingnut whackadoo, and walking, living, breathing conflict of interest.” They attack Ginni Thomas for having called Anita Hill to ask for an apology and say that “Justice Thomas himself has the same devil may care attitude toward rules of conduct as his wife has.”
- On February 22, Business Insider published an article titled “An Ex-Trump Aide Said a White House Gathering with Justice Clarence Thomas’s Wife, Ginni Thomas was the ‘Craziest Meeting I’ve Ever Been To’ .” Aside from the above quote from an unnamed person (a tactic that has become very familiar), they report that Ms. Thomas founded a group called “groundswell “with the help and support of Steve Bannon. They also report that Ms. Thomas is on the Board of the Council for National Policy’s political arm, CNP Action.
- On February 23, Black Enterprise went with the title “Ginni Thomas, Wife of Supreme Court Justice, Had Ties to Capital Riot Organizers: Report.” In this piece, they report that Ms. Thomas is on the Advisory Board of Turning Point USA, a sponsor of the rally on January 6. They then ominously say that a former clerk to Justice Thomas and a friend of both Justice and Ginni Thomas, John Eastman, wrote the memo that outlined how Vice President Pence could have overturned the election.
- On February 25, the Los Angeles Times published an article titled “Has Clarence Thomas’s Wife Crossed a Line? Yes, and Then Some.” They quote a law professor named Stephen Gillers who says that Ginni Thomas “has indeed crossed a line, becoming more brazen in her norm busting.” Gillars adds: “Laws cannot prevent Ginni’s conduct. We must rely on self restraint and a decent respect for the court. For 240 years, that worked.”
- Not to be left out, CBS, MSNBC, CNN., NPR and many local TV stations ran stories that had essentially the same themes and it many cases cited the news reports mentioned above.
So, let’s return to the question of why this sudden hysteria. Justice Thomas is the senior member of the Court. When the Court renders a decision, the Chief Justice assigns to himself or another Justice the task of writing the majority opinion—but not if the Chief Justice is not voting with the majority. In that case (assuming Justice Thomas is voting in the majority), Justice Thomas gets to designate himself or another Justice to write the majority opinion.
The prospect of Justice Thomas writing the opinion reversing or limiting Roe v. Wade or the opinion banning race conscious college admissions or opinions ruling on gun rights frightens the elites who have for a Century counted on the Court to enact policies that are not approved by the majority of the public and have not been approved by Congress. The prospect of a strong black jurist unwilling to bend to political pressure and insisting on interpreting the Constitution as written angers and frightens these strong elites. Further, Ginni Thomas exemplifies the strong and independent woman that the elites like to extol but only if they have the “right” political philosophy and opinions.
In the process of attacking Justice Thomas for making rulings based on his reading of the Constitution and attacking Ginni Thomas for being an outspoken conservative, the elites and the establishment have exposed that they have good reason to fear.
For my money, I say: “Go Ginni.”