A hard truth

1808 engraving of Chief Justice John Marshall

Let’s start with the Ginni Thomas conundrum.  Hackles have been raised all over Washington, New York – hell, all over everywhere – since it became known a couple of weeks ago that she had traded text messages with White House Chief of Staff Mark Meadows advocating overturning the election of 2020.  That Thomas was revealed to have trafficked in wild right-wing conspiracy theories -- one of which even foresaw members of the Biden family, people in the government, reporters and tech company executives jailed at GITMO scheduled to “face military tribunals for sedition” – gave rise to even more concern among prominent Democrats and legal experts about her husband, Justice Clarence Thomas, who participated in at least two Supreme Court cases involving investigations of attempts to overthrow the election.

How can this be, people wondered, that the wife of a Supreme Court justice can be involved in an overt attempt to overthrow a legitimate election and yet her husband is allowed to just go about his business on the Supreme Court as usual?

The answer is, it can be because this is the democracy we live in under the Constitution we adopted at our founding as a nation, and practically since that founding, there have been no restrictions on what Supreme Court justices can do on the court or even outside of it.  The supremacy, if you will, of the Supreme Court over the laws of the land, and at times seemingly over the other two branches of government, was established first in the Constitution itself and second by one of its first major cases, Marbury v. Madison.

That decision, long celebrated as what amounts to the founding decision of the court’s power to determine what is what when it comes to the Constitution, has an interesting history.  Appropriately enough, at least in the matter of Ms. Thomas, the case arose out of a disputed election between John Adams and Thomas Jefferson, which Jefferson won easily in the popular vote, but only narrowly in the electoral college.  This left Adams and his supporters, shall we say, plenty pissed off, and Adams proceeded to do everything he could to hinder Jefferson’s presidency before it even began.

See if this doesn’t sound familiar:  Adams decided one way he could hobble his rival was by appointing about 60 of his party members and supporters to newly-created circuit court judgeships and justice of the peace positions.  He did this just two days before the end of his term, and the Senate, which his party, the Federalists, controlled, voted to confirm them.  All that remained was to deliver the “commissions” formally confirming the appointees to their posts.  With only one day remaining before Adams left office, he instructed his Secretary of State, John Marshall, who had recently been confirmed as the new Chief Justice of the Supreme Court, to get the commissions out there to his appointees.  Marshall gave the job to his younger brother, James Marshall, and he managed to deliver nearly all of the commissions before Jefferson took office. 

Jefferson, upon becoming president, announced that any commissions not delivered while Adams was still president were invalid and so those appointees could not assume their offices as judges or justices of the peace.  One of those who didn’t make the cut was William Marbury, and he sued Jefferson’s Secretary of State, James Madison, to force him to deliver his commission so he could become a justice of the peace.

Two years later, the man who was charged with delivering all those judgeship commissions, John Marshall, wrote the Supreme Court decision that refused Marbury his judicial commission.  How Marshall justified that decision is where it really gets interesting.  Marbury had sued asking the Supreme Court to issue a writ of mandamus ordering Madison to deliver his commission.  Justice Marshall found that Marbury had a legal right to his judgeship because “delivery” of his commission was merely a formality and that he had been legally appointed by Adams.

Marshall then found that Marbury had asked for an appropriate remedy in demanding a writ of mandamus.  Listen to his reasoning in this step of Marshall’s decision: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”  There truly is nothing new under the sun, is there? – “right of every individual to claim protection of the laws” would later form the basis for the 14th Amendment granting equal protection of the laws to all citizens of the United States, specifically freed slaves who had just been granted citizenship.

But then Chief Justice Marshall took on the issue of whether the Supreme Court itself had the jurisdiction to issue a writ of mandamus in the matter.  It’s complicated how Marshall concluded that Marbury was not entitled to his remedy, but in arriving at that conclusion, Marshall proceeded to establish the supremacy of the Supreme Court over not only the Executive branch, but the Congress when it came to determining what is, and what is not Constitutional.

Marbury cited the Judiciary Act of 1789 in his argument.  That act established the federal court system and the Supreme Court’s original and appellate jurisdictions and gave it the power to issue the writ of mandamus he demanded.

Marshall found that yes, the court had the power to order Marbury’s appointment to the bench, but it lacked jurisdiction because the Act of 1789 was in conflict with Article III of the Constitution, which established the Supreme Court and limited its original jurisdiction to cases involving ambassadors, ministers, consuls, and cases in which a state in the union is involved.  Marbury’s case didn’t involve any of those conditions, and so the Supreme Court did not have jurisdiction.  But in order to come to this conclusion, Marshall saw it was necessary to strike down the section of the Judiciary Act of 1789 that Marbury had drawn its attention to.  It was the first time that the court had taken this power upon itself, which became known as the power of judicial review.

Interestingly and significantly, those words are found nowhere in the Constitution, which sounds rather familiar, doesn’t it, with so many other words not found in the Constitution being cited in recent disputes.  Nevertheless, by assuming this power, Justice Marshall put the Supreme Court above the Executive – in this case, James Madison, the Secretary of State to whom Marbury wanted the court to issue a writ of mandamus, and the congress, which had passed the section of the Judiciary Act Marshall and his Supreme Court (then with only 4 members) were unilaterally striking down as unconstitutional.

The lesson being, I’m afraid, that when you take powers that are just lying around waiting for someone to take them, and you assert them, and nobody stands up and says, “hey, you can’t do that!” then those powers belong to you. 

To this day, nobody is telling the Supreme Court – and thus its individual justices – what they can and cannot do.  And so we find ourselves in a situation where the wife of a Supreme Court justice apparently engaged in an attempted overthrow of a legitimate election, and absolutely nothing can be done to force the Supreme Court justice to remove himself from any cases which might involve what his wife attempted to do.

There is a remedy, to use Justice Marshall’s word, or two remedies actually:  The first would be to amend the Constitution and make rules for the court which it does not currently have, including ethics rules which would mandate the recusal of justices from cases involving their spouses.  But that wouldn’t be desirable, as the Constitution probably shouldn’t be amended in a way that is clearly directed at such a specific problem, and besides, amending the Constitution opens up a whole pandora’s box I’m not sure we want to open right now, given the proclivities of one of our two political parties.

The second remedy would be to pass a law regulating the ethical behavior of Supreme Court justices.  This may or may not be possible.  There is a clause of Article III which seems to give the Congress the power to regulate the court: “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” But I’m sure arguments could and would be made that such regulations would apply only to its appellate jurisdiction, in the words of the Constitution, and thus not to the behavior of the justices themselves.

But who knows?  And it’s really beside the point anyway, because getting the political parties to come together in the Congress of the 21st Century to do anything more than agree to pay for picking up their own garbage is as unlikely as turning around the rain and sending it upwards back into the clouds from whence it came.  That such a law would clearly be targeting one of the Republicans’ favorite justices, Clarence Thomas, and his wife, with whom something on the order of 90 percent of them probably agree, makes it even less likely to pass.

There is a case to be made that we should be stuck with her, because the fact that Ginni Thomas is anyone’s wife, much less that of a Supreme Court justice, shouldn’t matter in the least.  She has the right to believe insane conspiracy theories, and the right to free speech as in sending texts to Meadows, and seemingly the right to advocate for overturning the election, as many lawyers representing the interests of Donald Trump went into many federal courts and advocated for exactly that in 2020 after Trump lost. 

And so remaining is what I would call a hard truth:  we’re stuck with Ginni Thomas and her husband Clarence the Supreme Court Justice.  Ginni can believe any bullshit she cares to, she can spread falsehoods and advocate for overturning legitimate elections all she wants.  And Clarence Thomas is free, going all the way back to Marbury v. Madison, to do whatever the hell he wants on the court, to cast votes for or against any principle you or I might be in favor of or find reprehensible with every fiber of our being.  Because we live in the country we’ve got, not the country we might want, unless and until we vote ourselves a different one.