The Weapon of Intimidation

Published April 26, 2022

We have become accustomed to the use of inflammatory rhetoric as a means of intimidation to achieve a desired political result. That tactic is now spreading to the judiciary, specifically the Supreme Court.

In the political realm, we have recently witnessed the attack on a parents’ rights bill in Florida, describing it a “don’t say gay” statute and the intimidation of the CEO of the Disney Company into taking a political stance against the bill. We are also witnessing an attempt to silence Kevin McCarthy, the minority leader in the House, by leaking tapes of private conversations concerning his reaction to the January 6, 2021 riot in Washington in the days immediately after that riot. In the judicial realm we are witnessing an attempt to intimidate the Supreme Court by attacking Justice Clarence Thomas as a result of the political activism of his wife, Ginni Thomas.

The latest attacks result from leaked text messages Ginni Thomas exchanged with former Trump Chief of Staff Mark Meadows in which she expressed her belief that the 2020 Presidential election was “stolen” and that President Trump should attempt to overturn the result. It is a legitimate position to agree or not to agree with Ginni Thomas about the election and to agree or not to agree with any particular theory of election fraud or irregularity. It is not a legitimate position to attack Ginni Thomas for advocating her position or for communicating with Mark Meadows about it and it is even less legitimate to attack Justice Thomas as a result.

We hear terms like “conflict of interest” and “duty to recuse” being tossed around liberally. Defenders of the Thomases have pointed out the inconsistency, indeed the hypocrisy of these attacks, by citing the spouses of other judges who have been politically active. In my view, it is a trap to get drawn into an intellectual debate about judicial ethics. Debate presumes that both sides are acting in good faith in advocating their views. The critics of the Thomases are not acting in good faith. To understand their motive, look no further than cases now before the Supreme Court on the subjects of abortion, gun rights and affirmative action in college admissions. 

This motive was laid bare by Kathleen Parker in a March 18, 2022 article in the Washington Post. She says that the critics of Ginni Thomas have pointed out that she has been “advocating for issues that, importantly, could come before the court on which her husband sits. These include gun rights, affirmative action and abortion.” She goes on to say: “By making Ginni Thomas an issue, pro-choice advocates surely hope to undermine the integrity of her husband as the case is being decided. The audience for all this attention is likely John G. Roberts, Jr., the chief justice, who speaks often about the need to protect the court from politics.”

This, of course, is a prime example of assuming the good faith of the Left in their claim that the Supreme Court has become too politics. As a good friend said to me, conservatives often assume that if they show a willingness to moderate their positions, liberals will reciprocate but that doesn’t happen.

The Supreme Court is currently considering cases dealing with (i) abortion — Dobbs v Jacksons Women’s Health; (ii) gun rights — New York State Rifle & Pistol Association v Corlett; and (iii) affirmative action in college admissions — the companion cases of Students for Fair Admissions v Harvard and Students for Fair Admissions v University of North Carolina

I have written before about the Dobbs case. In that case, the viability of Roe v Wade, which recognized (or discovered) a Constitutional right to abortion and Casey v Planned Parenthood, which set the point of viability as the line before which no law could put an “undue burden” on the abortion right, is at issue. Dobbs deals with a Mississippi statute which bans abortion (with limited exceptions) after 15 weeks of a pregnancy. Justice Thomas has previously expressed skepticism about Roe and Casey and he is expected to vote either to reverse these decisions or substantially expand the ability of the states to restrict and regulate abortion.

The New York State Rifle & Pistol Association case deals with a requirement that to get a concealed carry permit the applicant show “good cause” why the applicant needs a gun for his safety and protection. Similar statutes exist in many other states. Justice Thomas has consistently supported an expansive reading of the Second Amendment right to bear arms and it is expected that he will rule that the New York statute at issue is unconstitutional and violates the Second Amendment.

The Students for Fair Admissions cases question the constitutionality of Harvard University and the University of North Carolina in using race as a factor in considering the admission of applicants. Justice Thomas has long been a sceptic of affirmative action policies. It is likely that he will vote in favor of Students for Fair Admissions. He may even cite himself as an example of the ability to be admitted to college and to succeed in one’s profession based strictly on merit and without special benefit based on race.

I do not expect Justice Thomas to give ground to the attempt to intimidate him. His history, dating back to the Anita Hill allegations of sexual harassment during his confirmation hearing (by the way presided over by then Senator Joseph Biden) has shown Justice Thomas to be strong and independent and willing to fight for himself. As Kathleen Parker said, the real audience for the attack on Justice Thomas and Ginni Thomas is Chief Justice Roberts.

Chief Justice Roberts has no ability to force Justice Thomas to recuse himself from any of the above cited cases or any cases dealing with the 2020 election or the January 6 riot. Only Justice Thomas can make that judgment. However, we will have to watch whether Justice Roberts tries to steer the decisions in Dobbs, New York State Rifle & Pistol Association and Students for Fair Admissions in a moderate direction in the interest of not appearing political.  

In recent Supreme Court decisions, Justice Thomas has shown his independence. In Ramirez v Collier, in which the Court recognized the right of a person about to be executed to have his pastor enter the execution chamber and lay hands on him and sing and pray with him, Justice Thomas was the sole dissenter.

In a decision in the case of Thompson v Clark, concerning the basis for a Section 1983 malicious prosecution claim, Justice Thomas joined Justices Alito and Gorsuch in dissent. The majority held that a malicious prosecution claim required only a showing that a prosecution ended without a conviction. In the view of the dissenters, there had to be no reasonable basis for the prosecution.

In a decision in the case of United States v Tsarnaev, which reinstated a death sentence and decided that the lower court did not abuse its discretion in not asking prospective jurors what they learned from the media about the case and in excluding from evidence the fact that the defendant’s brother may have been involved in a prior triple homicide, Justice Thomas joined the majority. To refresh your memory, the Tsarnaev brothers were the Boston marathon bombers. Justices Breyer, Sotomayor and Kagan dissented.

In Whole Women’s Health v Jackson, Justice Thomas joined an opinion authored Justice Gorsuch and joined also by Justices Alito, Kavanaugh and Barrett, that an abortion provider cannot sue a state court clerk and a state court judge, but the abortion provider may proceed with a suit against state medical licensing officials (Justice Thomas dissenting from that part of the opinion. This case was an action for an injunction against the Texas heartbeat law. 

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