One of the saddest things about this era has been the slow, steady demolition of the U.S. Supreme Court and the judicial branch.
One of the stabilizing forces in American history has been a belief in the rule of law and the dispassionate administration of justice. For most of the nearly 250 years we Americans have had a nation, we viewed the courts—and particularly the high bench—with reverence.
That we held the legal system in such high regard was deliberate.
Much of the reason America’s courtrooms are high-ceilinged spaces that resemble cathedrals with almost airy perches for judges to sit was that we wanted to inspire fealty to the law.
This is especially true for the Supreme Courts of both the nation and the states. The rooms in which the justices operate are supposed to overwhelm those who appear and argue there with the majesty of the law.
Perhaps this reverence for the courts, even the U.S. Supreme Court, always was an illusion. The judicial branch, after all, is a human institution and judges, even U.S. Supreme Court justices, are susceptible to the same faults and frailties as the rest of us.
But it was a useful illusion, one that often provided the glue necessary to hold together a country that seemed determined to fly apart.
That is why those who do damage to the judicial branch’s reputation for non-partisan administration of justice do grave harm to the nation itself.
Supreme Court Justice Clarence Thomas is doing just that right now.
The justice’s wife—Virginia “Ginni” Thomas—was in steady communication with former President Donald Trump’s White House while rioters stormed the U.S. Capitol and attempted to block the peaceful and lawful transfer of political power following the 2020 presidential election. In a series of texts, she urged Trump Chief of Staff Mark Meadows to help the then president to stand firm, defy the law and implement a coup.
Ginni Thomas is a pure product of these times, a conservative activist whose political beliefs put her to the right of Genghis Khan. Ideologically, she lives and works, to use one of my grandfather’s memorable phrases, “out there where the trains don’t run.”
Because there already has been litigation regarding the Jan. 6 insurrection to land before the Supreme Court—and, in that litigation, Thomas was the only justice to side with the Trump administration’s arguments—and more is coming, critics have argued that Thomas should recuse himself.
Those critics are right.
In no other profession would a person whose spouse has been so actively and intimately involved in an activity be expected to act impartially about either the activity or the spouse.
But it’s at best even money that the justice will do so.
That’s because partisans have done such a superb job of politicizing both the high court and Americans’ notions of how the judicial branch should operate.
Thomas is a prime example.
When he was nominated to sit on the U.S. Supreme Court 30 years ago, he hadn’t amassed a record of legal scholarship or judicial excellence that would justify such an elevation. No, his primary recommendation was a history of Republican partisanship, a willingness to do dirty work for the GOP.
That was part of the reason the fight over his nomination was so brutal.
The same is true of Justice Brett Kavanaugh. Before he put on a judge’s robe, he spent much of his time as an unrepentant and unrelenting political hatchet man.
Republicans complain about the treatment Clarence Thomas and Kavanaugh received while their nominations were being considered. In the process, the GOP partisans neatly overlook the fact that Neil Gorsuch and Amy Coney Barrett, who had strong records as scholars and jurists, were treated more gently, even though they both are rigidly conservative.
They just didn’t carry the baggage of partisan hackery that both Thomas and Kavanaugh did and do.
Republicans, one would assume, would be just as savage if a Democratic president tried to put James Carville or some other political gut-puncher on the bench.
The Thomas imbroglio illustrates the damage done to what once was the most respected branch of our government.
That damage already is lasting.
The only question that remains is whether it is permanent.