Supreme Court Justice Clarence Thomas recently expressed worries about America’s declining respect for the judiciary and rule of law at a gathering of lawyers and judges in Atlanta. Thomas correctly observed that the loss of esteem “bodes ill for a free society.” He seemed to be perplexed about the cause, but perhaps a serious glance in the mirror would help explain this unfortunate situation.
Thomas and some of his ideologically driven compatriots on the Supreme Court have shaken public confidence in the law, particularly since they achieved a supermajority on the court. The Supreme Court has taken on the aura of a high-powered political instrument for the rightwing of the Republican Party. The justices realize that they are no longer bound by checks, balances and enforceable ethical restraints.
If we harken back just to late March, we may recall that Thomas was up to his ears in a conflict-of-interest controversy brought on by the unsavory election-related activities of his wife. A jurist’s spouse may, of course, engage in political activities. But the jurist must recuse, that is, “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Thomas failed to recuse in three cases related to his wife’s efforts to overturn the results of the 2020 presidential election, including a vote to stop the Jan. 6 committee from obtaining records that may have contained some of her communications. It is left to the justices to determine if they have a conflict, but these were not even close calls.
I served on the Idaho Supreme Court for 12 years, and we used the same recusal standard — to sit out cases where there is even an appearance of impropriety. We did not have the high-powered cases that the U.S. Supreme Court gets, but we handled twice as many cases every year and were faced each time with the ethical question of recusal.
These cases should have been no-brainers for Thomas. His highly-publicized refusal to stand down has undoubtedly shaken public confidence in the impartiality of the Supreme Court, contributing to the erosion of respect that caused Thomas’s public hand-wringing.
We have seen any number of recent actions by members of the Republican majority that contribute to the continuing decline in public esteem for the court. The release of Justice Alito’s draft abortion opinion in Dobbs v. Jackson Women’s Health has been a hammer blow to the court. He could have reached the same result without the arrogant tone and questionable claims. The draft gives us an unvarnished, unsettling glimpse into Alito’s mind.
The vote on the outcome of the case sheds some rather unfavorable light on the honesty of Justices Kavanaugh and Gorsuch, further eroding respect for the GOP majority. During their confirmation proceedings, they both gave the impression that the holding in Roe v. Wade was practically inviolable, although many observers thought they were just dissembling to get the job. Well, they were. A confirmation proceeding nowadays is just a dog and pony show, but you always hope against hope for a hint of honesty. What next, hooking them up to a polygraph?
Many other cases decided by Republican justices, dating back several years, have been primarily decided along party lines. Voting rights cases stand out. No issue is more important to the GOP’s future success. The Voting Rights Act of 1965 was passed by Congress to guarantee Black voters the right to participate in southern state elections. At that time, Republicans strongly supported the right of Blacks to vote and were instrumental in getting the bill enacted. After President Nixon’s southern strategy succeeded in switching the parties around, Republicans began trying to chip away at the voting protections. Thanks to a number of ill-conceived decisions favoring their Republican colleagues, Supreme Court majorities have effectively neutered the Voting Rights Act.
We can expect several other gifts from the Republican-appointed justices to the party faithful this year — striking of New York’s strict concealed carry gun law, hamstringing the nation’s ability to fight global warming and, of course, the abortion case. The supermajority of conservative justices has practically set up a welcome sign for extreme activists to bring almost any type of ideologically-charged case before the court for decision, stare decisis (adherence to previous decisions) be damned.
Some justices have obviously heard the growing chorus of concerned court observers who point out the increasing politicization of the Supreme Court. They have responded defensively, protesting that politics does not enter into the court’s opinions. Justice Alito huffed last September that the court is not “a dangerous cabal…deciding important issues in a novel, secretive, improper way.” Justice Barrett claimed the court was “not a bunch of partisan hacks.”
Perhaps they protest too much. It doesn’t help their case that Justice Gorsuch headlined an off-the-record gathering of the highly political Federalist Society on Feb. 4. That organization generally gets credit for elevating President Trump’s three appointees to the court.
It is not clear where this train is headed, and it’s likely we won’t know for sure until the outcome of the 2022 elections. If the Democrats can hold the House and increase their numbers in the Senate – an iffy proposition – there could be a major Supreme Court reform effort. If not, Justice Thomas will have much more to wring his hands about, although I suspect the GOP faithful will still love their majority.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.