SCOTUS has a legitimacy crisis — so does America

by Will Bunch

Earlier this month, a speech warning about the dangers of politicizing the U.S. Supreme Court was delivered in Utah by an authoritative, insider source, who cautioned that “[a]t some point the institution is going to be compromised.” He voiced his growing concern that eventually we could “chip away at the respect of the institutions that the next generation is going to need if they’re going to have civil society.”

The next generation should be very, very afraid. The speaker was Justice Clarence Thomas, the longest-serving member of the High Court, and that his words were delivered inside a swank hotel to benefit a foundation run by a partisan Republican who’d played a key role in shifting the court rightward, former Sen. Orrin Hatch, was neither the biggest irony nor the most outrageous.

Less than two weeks later, D.C. journalists Bob Woodward and Robert Costa published a bombshell scoop about a lengthy series of politically explosive text messages that the justice’s wife, Virginia, or Ginni, Thomas — well known in the capital as a right-wing activist — sent to Donald Trump’s then-top aide, chief of staff Mark Meadows. The messages show that between President Joe Biden’s November 2020 election victory and the Jan. 6, 2021, insurrection at the Capitol, Ginni Thomas was aggressively lobbying the White House to overturn the result — a battle that might well have ended up before her husband’s Supreme Court.

On so many different levels, the Ginni Thomas-Meadows communications are deeply disturbing. The most immediate question is arguably the most specific one: Is Justice Thomas’ integrity tainted by all of this?

There’s no clear indication from the texts that Ginni Thomas took up her unsupported claims of election fraud with her husband. We do know, however, that Justice Thomas was the court’s lone vote against turning over key Trump records to the House committee investigating Jan. 6 — a vote many experts in legal ethics find troubling, as do I and many regular folks.

Yet there’s something else about the Ginni Thomas texts that people find distressing, even though it’s arguably not illegal. That’s the unhinged content of her writing. In one text, the wife of a sitting Supreme Court justice claimed that members of what she called “the Biden crime family” were en route to barges near the Guantanamo Bay prison camp awaiting military trials for sedition, an idea that circulated only in the online world of QAnon, not in any reality-based circles. Ginni Thomas also sent Meadows a link to a since-deleted YouTube video with false claims of election fraud from a QAnon-friendly right-wing conspiracy theorist who has previously referred to the 2012 mass murder of children in Newtown, Conn., as a “false flag” operation.

The majority of Americans — the people who gave more votes to Hillary Clinton in 2016 and even more to Biden in 2020 and put the Democrats back in nominal control of Congress — are still, despite those victories, watching the car careen off the cliff, and we are unable to find the brakes. There seems to be no way or no will to hold our staggeringly corrupt leaders accountable. And there’s seemingly no way to stop the crazy, like QAnon, from getting crazier. I’m in a total funk over the state of the union, and when I wrote that on Twitter hundreds of people agreed with me.

But the growing illegitimacy of the Supreme Court, in particular, feels like the downward slide of U.S. democracy is crossing the Rubicon. Like the greater American experiment, the high court has been deeply flawed at times — Dred Scott and Plessy v. Ferguson leap to mind — yet there was much residual good will from the expanded civil rights and generally (though not always) more bipartisan confirmation hearings of the mid-20th century. The Supreme Court has long held greater public trust than comparable institutions like Congress — but its numbers are plummeting. The court’s September 2021 Gallup Poll approval rating of 40% is an all-time low.

The average citizen views today’s Supreme Court as highly politicized because we all saw what our politicians did to it. The Republican political hardball, and the brazen dishonesty that was used to justify it, Trumpified the court with three out of nine justices. Now, no one is shocked that a court forged with such political bad faith is making bad decisions with nakedly political overtones.

There’s been a kind of frog-in-boiling-water effect with the gradual erosion of the high court’s moral authority. As America’s political divide becomes more contentious, advocates increasingly look to block new laws or maneuvers like 2022′’s redrawing of legislative districts in the courts, and the Supreme Court is increasingly dealing with these through what’s now known as “the shadow docket.” These are emergency orders issued without the usual oral arguments or deliberations, often issued without an announced vote tally or the normal written opinions. The “shadow docket” has allowed justices to make major decisions with speed and obscurity, and you won’t be shocked to learn that  these decisions have skewed more and more to the right.

Most court watchers say preserving the court’s eroding legitimacy remains a front-burner issue for Chief Justice John Roberts, who’s occasionally surprised the public  with  centrist votes, while the court’s 2015 decision enshrining gay marriage did reflect changing public views on social issues. But where the rubber hits the road — on  issues like money in politics or voting rights — the conservative Roberts/Trump Court has steadily pushed America toward the abyss.

All of these things — the rightward drift punctuated by that Mitch McConnell-engineered theft of an open seat in 2016, and now the ethical crisis triggered by the Thomases — have contributed to dread over the big cases the court is now hearing. 

It felt fitting that the high court’s legitimacy crisis was reaching a crescendo right in the middle of the fraught confirmation for a new justice, Judge Ketanji Brown Jackson. The hearings were a tawdry showcase for Republican senators to spout some of same QAnon-flavored nonsense that seems to have poisoned Ginni Thomas’ brain — and a reminder of how a toxic right-wing movement has been slowing infecting our justice system for decades.

So what’s the answer? The left’s favorite solution of expanding the court to somewhere between 11 and 15 justices is, in my opinion, intellectually supported by the McConnell power grab, but it’s also highly unlikely and would only worsen the public perception that the Supreme Court has become a political animal. Term limits for justices could be more easily justified, and could curb the life-or-death flavor of these confirmation battles, but again it’s hard to see radical changes getting enacted in such a divided Washington.

In the Clarence Thomas matter, what’s realistic? Chief Justice Roberts could take his supposed concern about the court’s public standing and put the foot down on Justice Thomas to recuse himself in any future cases involving Jan. 6 or other matters tied to his wife’s advocacy.

That’s not much. It’s the bare minimum, but at least it would begin to turn the damaged aircraft carrier that is the Supreme Court’s legitimacy in the right direction, and perhaps buy some time to build the needed support for real and lasting reform. Time is running out, because the post-Trump GOP movement to erode the integrity of elections all but ensures that between now and 2025 the nine justices will be ruling on the continued existence of American democracy. That ruling will fail without the public’s trust — and as of right now, the Supreme Court doesn’t have it.

Will Bunch is national columnist for the Philadelphia Inquirer.