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.
My late Constitutional Law professor, Archibald Cox, best known for his later role as Watergate special prosecutor, would have given you an "A" for your analysis of Marbury v. Madison. I must correct one historical error. Jefferson did not win the electoral vote in 1802; it was tied. The election was then thrown to the House of Representatives. The deciding vote there was cast by Matthew Lyon of Vermont, one of my favorite minor characters in U.S. history. He came as an indentured servant from Ireland and, after working off his indenture, got a grant from the governor of New Hampshire colony of land in what is now Vermont. He served in the War of Independence as one of the Green Mountain Boys, married a daughter of Vermont's governor and, when Vermont joined the Union (after several years as an independent republic) got himself elected to Congress. He published a scathing comment about President Adams' policy toward France that got him convicted under the Alien and Sedition Act, and was re-elected while in jail. He later moved to Kentucky and was elected to Congress from there, so having the distinction of serving from two states.
While we are stuck with the both of them, nobody seems to understand one thing-time does fly and people die.
Everyone does, including SC Justices. Clarence Thomas just came out of the hospital following a pretty bad infection requiring antibiotics, and skilled nursing care. He's 74, and not immortal. I'd say that he could resign or retire, both of which have happened to justices.
He could change his mind and decide to stay home and watch football all day. If he did, I'd not mind at all.
It could make for an interesting opening on the court, but with the specter of the GOP retaking the Senate this year (I hope they do not, but who knows?) that nomination would be ruled by them until hell freezes over and Mitch McConnell would do his best to repeat what he did with Garland.
This is the worst SC I've seen in my life, and I'm glad I'm not a young woman any more.
These ‘originalists’ are claiming they know the constitution exactly as it was written as if that gives them the exact interpretation. But that’s the same hypocrisy and damage that occurs in the name of the Bible’s ‘fundamentalists’ who think they have a lock on the supposedly true meaning of the Bible. Now we’re stuck with lots of decisions that make no sense at all and are based on some concrete, impractical, undeveloped reasoning that constitute a danger to our fundamental rights as human beings.
Here’s what I learned from Lucian’s fine, crystal clearly written essay:
I am not smart enough to be a lawyer.
The Constitution of the United States says, in so many words, that the power to effect change in society comes from the people in that society. Ethics violations and outright corruption are always a potential because the designees who carry out judicial functions, like the rest of us, are flawed human beings. But on the whole, the system should work because there is another court that hasn’t been mentioned that nevertheless holds tremendous power, a court that is arguably the highest court in the land:
The Court of Public Opinion.
Recently over on Heather Cox Richardson, a subscriber (who if memory serves is also a subscriber here) stated, and I’m paraphrasing, that the name of Clarence Thomas’s recent illness, and by implication the reason for his hospitalization, is Ginni‘s Big Mouth.
Virginia Thomas is your garden variety right-wing cotton fluff for brains dummy. Barely worth the time invested in this essay.
Looking forward to returning to our regularly scheduled program: the slow motion disintegration of the Soviet-era Kremlin and its soon to be deposed Stalinist head.
Oh Roland... Ginni ain't no dummy though. She is a master of manipulation and the leading architect of the insurrection. We know that now by the texts/emails she sent to good ole Mark Meadows. She is as dangerous as her husband. All of us are on pins and needles praying Roberts cajoles Clarence to resign. It would be an absolute miracle if he did and quite frankly, a wonderful thing for Biden. This way, he could stick it to McTurtleneck!
I agree with several of your points, in fact all of them. I was about to write that the chances of Roberts cajoling Clarence to resign, however, are slim, little and none. You actually covered that by calling such a move an "absolute miracle." Yup! Do they happen? Not lately nor likely.
In 1996, "Justice" Thomas (sorry, I can't help using scare quotes where several of the current occupants are concerned) recused himself from U.S. v. Virginia, which struck down the male-only admissions policy at the Virginia Military Institute (VMI), because his son was a VMI cadet at the time. This was the right thing to do. That was barely four years into Thomas's tenure on the Court. Now, almost 30 (eek!) years in, he's refusing to recuse himself from cases in which his wife is far more involved than his son was in U.S. v. Virginia.
Thomas's record on the Court over the decades has consistently ranged from mediocre to infuriating and back again, but something big has changed between 1996 and 2022. Thomas and, it seems, the whole GOP no longer care about appearances, or about the Court's reputation outside their own bubble. This is disturbing. As Lucian points out, SCOTUS can do whatever it wants, but nevertheless, what gives it and its decisions legitimacy is our respect for the institution and the law. That respect has been shaky for a while now, and it's getting shakier. Have the "justices" given any thought to where this ever-shakier reputation is almost certainly leading -- to a Court whose decisions are considered illegitimate and thus can be ignored by anyone who disagrees with them?
You wrote: "Have the "justices" given any thought to where this ever-shakier reputation is almost certainly leading -- to a Court whose decisions are considered illegitimate and thus can be ignored by anyone who disagrees with them?"
That was my thought exactly. If Ginni and hubby can exercise their "rights" to do whatever they want, regardless of law, of precedent, or appearance, then what makes them freer than anyone else? Why not the rest of us? He and she and Roberts (who has no role whatsoever in my opinion) have no scruples or ethics or any other moral concern; they have made this Stench Bench completely impotent and useless. Maybe we should consider scrapping it altogether? Maybe we could, if freedom means everything and rights are whatever anyone wants to describe them and nothing means anything anymore.
It's tempting, but as usual "tear it down" is easier, faster, and more satisfying than building something else up from scratch. I have the same reaction when progressive types call for a constitutional convention: They don't know WTF they're asking for. The right wing would *love* a constitutional convention," and they're perilously close to controlling enough state legislatures to call one (though not as close as they were a few years ago). One of the big lessons of Covid-19 is that many, many USians are all me-me-me and to hell with anybody else -- and the GOP is pitching quite effectively to this crowd.
Fwiw, this is the worst SCOTUS in my lifetime, but I wasn't around for the Court that decided Plessy v. Ferguson, or Scott v. Sandford. My benchmark looks more like the Warren Court of the 1960s, and compared to that -- well, there's nowhere to go but up.
I understand and appreciate your pain what you see is an insoluble problem. Behold, there is a long-standing remedy that would allow the United States District Court for the District of Columbia to issue a preliminary and permanent injunction against the errant Supreme Court Justice Clarence Thomas, provided that the moving party is found to have standing to bring suit. Allow me to explain.
The Recusal statute 28 USC § 455 stands only second to the Constitution in legal authority. No Code of Conduct or extrinsic ethical standard is needed, and the statute is self-enforcing, meaning that enforcement of the ban on participating in a proceeding in which a justice, judge, or magistrate judge is ethically compromised or has a conflict of interest. The fact that Justice Thomas' Supreme Court colleagues have turned a blind eye towards his dereliction of duty, and have not excluded him from the Court's conference room where cases are discussed and decided is their own wrongful conduct; and their refusal to act is, legally speaking, a fraud on the United States. Their dereliction of duty is especially egregious when it became known this past week that justice Thomas' wife, Ginny Thomas, has been engaged in the political consulting business for a lengthy period of time, and has collected fees from Republican donors and other like-minded interests to the tune of several hundred thousand dollars. This was mentioned on Lawrence O'Donnell's show. I'll take them at their word that Ginny Thomas has been monetizing her husband's appointment to the Supreme Court in order to gain personal access to members of the White House staff, in particular former Chief of Staff Mark Meadows. Emails in the possession of the House Select Committee on the January 6 Insurrection are conclusive on that point. When the matter came before the court as to whether those emails, and other emails attributed to other close confidantes of former President Trump, Justice Thomas was the sole judicial vote against the former president's litigation position. The fact that justice Thomas was down voted 8 to 1, doesn't make his wrongful conduct any less egregious. As a procedural matter, his actions are not moot; because they reflect a course of conduct that he is been engaged in for an extended length of time. He is, and has been, willing and able to feather his wife's financial nest by providing access to former members of the Trump administration, with Ginny Thomas as the gatekeeper, a lucrative situation from which she has profited greatly. As such, a federal prosecutor could determine that such personal access by someone profiting from her husband's official position constitutes a fraud on the United States, punishable under 18 USC 371, the federal fraud statute. Additionally, indictments for mail fraud and wire fraud, 18 USC 1341, and 1343 could be alleged and proved, based upon her billing records for her political consulting practice. I will not speculate as to whether those consequences will actually occur, but the grounds are there.
As to the remedy, there is a civil action that would allow a Federal District Court to impose discipline on a sitting justice, judge, or magistrate judge who fails to follow the law and do his duty to recuse himself in a manner in which he, or a close relative, has a conflicting financial interest. That sort of intervention is authorized by a statute dating to the enactment of the Judiciary Act of 1789, now codified as 28 USC §1651(a). This statute goes by the title All Writs Act (AWA). Section 14 of the Judiciary Act became known as the 'all-writs' provision of the Act, once described as "the most expansive and open-ended language" of the Judiciary Act. It allows a federal court to "avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids as calculated in its sound judgment to achieve the ends of justice entrusted to it." United States v. N.Y. Tel. Co. 434 U.S. 159, 172-73 (1977). Application of the act is reserved for extraordinary situations for which there is no other discernible remedy.
The text of the act is as follows: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of the court which has jurisdiction. (Basically that means that a court can grant ex parte relief, unless the adverse party appears and establishes good cause why the court's order should be withdrawn).
The rules governing a court asked to grant such extraordinary relief are as follows, and there are four specific requirements:
* There must be an absence of alternative remedies, meaning that the AWA is applicable only when no other judicial tools are available.
* There must be an independent basis for jurisdiction. The act authorizes writs in aid of jurisdiction, but it does not itself create any federal subject matter jurisdiction. This is the reverse case of Marbury versus Madison, where Chief Justice John Marshall found that Congress lacked the constitutional authority to expand the Supreme Court's original jurisdiction. Original jurisdiction here lies in the District Court wherein the cause of action arose giving rise to a claim for relief. Subject matter jurisdiction is set forth in the Recusal statute quoted above; together with the allegation that Justice Clarence Thomas had violated his statutory obligation to recuse himself in matters involving his wife's business affairs culminating in her leveraging her marital relationship with Justice Thomas for financial gain, which gain also redounds to him. No further allegation is required, other than the petitioning party having a judicially cognizable legal interest to have standing to sue in petitioning the District Court take action.
In addition to the monetary gain that Ginny Thomas is alleged to have acquired using her husband's high judicial position to leverage access to former President Trump's close political aides and White House functionaries, there is the impact that her activities have had on slowing the investigation of the House Select Committee on the January 6 Insurrection. That constitutes intentional interference with an ongoing legislative proceeding and fact-finding investigation, and interference that have Justice Thomas apparently concurred in. Then dereliction of duty constitutes a fraud against the United States, for which he should be held to account.
* There must be a statement describing the necessary or appropriate aid of jurisdiction to the particular case. There must be an allegation that there is no currently applicable and enforceable code of conduct that would have deterred or penalized Justice Thomas from abusing his position for financial gain, or partisan political purposes, where financial gain to his wife's political consulting business was a distinct likelihood. He's done it before; and there's no reason to expect that he will not do it again. There should also be an allegation that the internal rules of the Supreme Court do not give the Chief Justice the power to suspend an Associate Justice for noncompliance with the Recusal Act. No other branch of government other than the Office of the President, and the President himself, leaves it to the incumbent officeholder's own conscience and sense of duty the decision whether to recuse himself from a particular matter at hand because of its inherent conflict of interest and self-dealing. That statement in and of itself would, in my view, compel a District Court to take action where palpable wrongdoing is discovered. As we have repeatedly seen, impeachment is not an effective remedy, either in the case of the presidency itself, nor is it sufficient to discipline incumbent members of the Supreme Court. President Trump was twice impeached for misconduct in office, and the Constitution provides that he may be criminally punished after he left office. A justice of the Supreme Court may also be impeached, but the impeachment remedy is itself essentially a dead letter realistically.
What could be sought is a mandatory prohibitory injunction to cease-and-desist whatever he was doing by either act or omission that allowed Ginny Thomas to profit from her relationship with him. The burden of proof is upon him to establish by clear and convincing evidence that he had nothing to do with her political consulting business. The choice will be really that she shutters her business; or he retires from the Supreme Court bench.
* The relief sought under the AWA must comport with usages and principles of law. Of all the requirements, and injunction against further wrongdoing is the easiest to justify. There are numerous statutes, rules, and regulations prohibiting federal officials and their employees from leveraging their federal jobs for outside financial gain. The fact that Justice Thomas knew about his wife's activities, and is presumed to know about her lucrative consulting practice, is itself a reason to grant the injunction. Even if Ginny was not in the business of political consulting, her trading on her marital relationship with Clarence to achieve illegitimate political ends in the form of supporting a violent insurrection against the American government constitutes dereliction of duty on his part and a violation of his own Oath of Office to support and defend the Constitution of the United States against all enemies foreign and domestic. He is presumed to know the consequences of his acts.
Congress doesn't have to enact these principles. They are already part of the law, and they have been a part of the law in one way or another since 1789. What I am saying is that someone was standing to sue, and that might include a congressman, the House Select Committee on the Investigation of the January 6 Insurrection, and conceivably, the Justice Department, has a way of compelling Justice Thomas to recuse himself in any matter involving the ongoing investigation. The Justice Department may also have a fraud case against Clarence and Ginny Thomas, because this goes far beyond freedom of speech.
This is the kind of post that makes me such a devoted follower of LKTIV's substack. I come for Lucian and stay for the enlightened and informed readers and their responses.
I continue to be gobsmacked that we keep referring back to the Constitution as it was written, knowing that we now live in a society, and with technology, they could never have dreamed of. If tasked to write a Constitution today, it would look vastly different than our current document. I believe the original authors knew that society would most certainly change and evolve, and built in remedies for the changes, but these seem to be ignored by our current court. Our society is not static, and by living with and by a document that the majority of the current justices view as static and unchangeable is (IMHO) just ludicrous
I think your argument is less with the Constitution and more with the current SCOTUS majority and, more generally, the "originalist" faction of the GOP. You may have noticed that there have been significant changes over the decades and centuries since the Constitution was born. I doubt this would surprise the founders at all, though some of them might be gobsmacked by some of the changes. Abolishing slavery? Prohibiting *liquor*? Letting women vote? Those changes came about through constitutional amendment (a process built into the Constitution) but some equally momentous ones came about as a result of judicial review: think Brown v. Board of Education of Topeka, Loving v. Virginia (in which the Court used the 14th Amendment to strike down state laws against interracial marriage), Roe v. Wade, Obergefell v. Hodges (in which the Court used the 14th Amendment again, this time to legalize same-sex marriage), and so on and on.
You are absolutely correct. I was trying to convey that what I have a hard time with is the originalist majority on the court who seem to believe that the original meaning of the words in the Constitution should apply to today’s society without exception.
And if you *didn't* have a hard time with it, that would be a problem! The originalist majority isn't an accident: the GOP has been working toward it for decades, and they hit paydirt during the Trump administration -- in part because the Dems didn't have the votes to get Merrick Garland confirmed during the Obama administration. "Originalism" is a (sort of) polite code word for "white-male-centric perspective."
And another thing: When the Constitution was written, the U.S. was largely agrarian. Concentrated corporate power wasn't a thing. The founders carefully devised checks and balances among the executive, the legislative, and the judiciary branches, but not against economic power coming from outside the government. For at least a century, some of the loudest screaming from the right has come when anyone tries to check the power of big business to do whatever it wants. In the "originalist" view, the government has minimal power to check big business. (The anti-originalists gain the upper hand when unchecked big business makes such a big mess that government has to bail it out, as during the Progressive Era, the New Deal, and after the big crash of 2008.)
So there's method in what to many of us looks like madness. Since running on a "Big Business über alles" platform wouldn't have wide appeal, they dress it up with "traditional family values" and all that culture war stuff, with a hefty dose of racism and xenophobia.
I have read there is some hope Roberts will act, if only behind the scenes, because his own standing in history with "The Roberts Court" will be badly tarnished by Thomas's actions (or failure to recuse). But the real solution is what I am seeing all over the country as We The People are working very hard to take back our democracy.
Corruption comes to even the best of ideas. The American people have seen this before. The progressive era (1895/1920) was a reaction to deep corruption and blatant criminality throughout the country. Reforms in the 1930's and 1960's were response to injustice and social bigotry and exploitation. Virginia Thomas legacy will be a part off the next reform/Progressive era. The wheel keeps turning the current Republican party will eventually get the historical boot.
Maybe that will happen, eventually. But if Paul Krugman is "terrified" about what the next half-decade (or less!) may hold, then I'm terrified as well. This is what Krugman wrote, just a couple of days ago:
"I was born here, and I have led a very privileged life — but I'm not complacent. I'm terrified about our country's future — and not about the distant future, either. This nation could be unrecognizable three or four years from now."
Bravo, Lucian! This is the best and clearest explanation I've seen on the Clarence Thomas question. I've been trying to explain this to outraged friends (whose outrage I share) for the last week or so. Now, I'll just refer them to you. Thank you.
Not so fast. Ginni Thomas has a law degree from Creighton University—is sedition and treason acceptable to members of the Bar? Is this how Jesuits screen candidates at their law school? I think it behooves Creighton U. to denounce this individual—let them release the kraken ON HER. She is a disgrace; her husband MUST NOT rule on Jan. 6th insurrection cases because his wife was DIRECTLY INVOLVED with treasonous activities.
I also think Clarence Thomas deliberately avoided attendance on Judge Jackson-Brown’s hearing because he KNEW the right-wingnuts would disparage her over having a white spouse. It backfired when news of Virginia Thomas’s seditious activities blew up in the press.
That brings to mind one thing-if the situation were reversed and Thomas was the nominee instead of Brown-Jackson, I wonder if they'd vote to confirm him? This confirmation hearing is bringing out all the racists and I would not doubt that he'd have a hard time as well. If it were up to the GOP right now, I think they'd keep the SC white. They're that bad.
Well, it is rather clear that given the history of the court, and the legal issues surrounding stare decisis as well as Marbury v Madison, any attempt by the legislature or executive to "legislate" anything related to the judiciary would be declared unconstitutional on its face. I imagine that it would require a constitutional amendment to fix this issue.
You need to know that Passaic, New Jersey has street named after all the presidents up to Lincoln except for John Adams, and indeed the city named a street after his son, Quincy. indeed it is called Quincy.
My late Constitutional Law professor, Archibald Cox, best known for his later role as Watergate special prosecutor, would have given you an "A" for your analysis of Marbury v. Madison. I must correct one historical error. Jefferson did not win the electoral vote in 1802; it was tied. The election was then thrown to the House of Representatives. The deciding vote there was cast by Matthew Lyon of Vermont, one of my favorite minor characters in U.S. history. He came as an indentured servant from Ireland and, after working off his indenture, got a grant from the governor of New Hampshire colony of land in what is now Vermont. He served in the War of Independence as one of the Green Mountain Boys, married a daughter of Vermont's governor and, when Vermont joined the Union (after several years as an independent republic) got himself elected to Congress. He published a scathing comment about President Adams' policy toward France that got him convicted under the Alien and Sedition Act, and was re-elected while in jail. He later moved to Kentucky and was elected to Congress from there, so having the distinction of serving from two states.
wow. nice.
While we are stuck with the both of them, nobody seems to understand one thing-time does fly and people die.
Everyone does, including SC Justices. Clarence Thomas just came out of the hospital following a pretty bad infection requiring antibiotics, and skilled nursing care. He's 74, and not immortal. I'd say that he could resign or retire, both of which have happened to justices.
He could change his mind and decide to stay home and watch football all day. If he did, I'd not mind at all.
It could make for an interesting opening on the court, but with the specter of the GOP retaking the Senate this year (I hope they do not, but who knows?) that nomination would be ruled by them until hell freezes over and Mitch McConnell would do his best to repeat what he did with Garland.
This is the worst SC I've seen in my life, and I'm glad I'm not a young woman any more.
Amen.
These ‘originalists’ are claiming they know the constitution exactly as it was written as if that gives them the exact interpretation. But that’s the same hypocrisy and damage that occurs in the name of the Bible’s ‘fundamentalists’ who think they have a lock on the supposedly true meaning of the Bible. Now we’re stuck with lots of decisions that make no sense at all and are based on some concrete, impractical, undeveloped reasoning that constitute a danger to our fundamental rights as human beings.
Here’s what I learned from Lucian’s fine, crystal clearly written essay:
I am not smart enough to be a lawyer.
The Constitution of the United States says, in so many words, that the power to effect change in society comes from the people in that society. Ethics violations and outright corruption are always a potential because the designees who carry out judicial functions, like the rest of us, are flawed human beings. But on the whole, the system should work because there is another court that hasn’t been mentioned that nevertheless holds tremendous power, a court that is arguably the highest court in the land:
The Court of Public Opinion.
Recently over on Heather Cox Richardson, a subscriber (who if memory serves is also a subscriber here) stated, and I’m paraphrasing, that the name of Clarence Thomas’s recent illness, and by implication the reason for his hospitalization, is Ginni‘s Big Mouth.
Virginia Thomas is your garden variety right-wing cotton fluff for brains dummy. Barely worth the time invested in this essay.
Looking forward to returning to our regularly scheduled program: the slow motion disintegration of the Soviet-era Kremlin and its soon to be deposed Stalinist head.
Oh Roland... Ginni ain't no dummy though. She is a master of manipulation and the leading architect of the insurrection. We know that now by the texts/emails she sent to good ole Mark Meadows. She is as dangerous as her husband. All of us are on pins and needles praying Roberts cajoles Clarence to resign. It would be an absolute miracle if he did and quite frankly, a wonderful thing for Biden. This way, he could stick it to McTurtleneck!
I agree with several of your points, in fact all of them. I was about to write that the chances of Roberts cajoling Clarence to resign, however, are slim, little and none. You actually covered that by calling such a move an "absolute miracle." Yup! Do they happen? Not lately nor likely.
I know. Was trying to infuse a little optimism…sigh
And good for you. We have to have some or will be paralyzed to do anything!
Amen!
Yo! We also “met” on Gannon’s post before Ann Coulter had me thrown off Twitter in one of the “purges.”
She’s an attorney, with lots of right winged experience. Her “fluff” is dangerous.
In 1996, "Justice" Thomas (sorry, I can't help using scare quotes where several of the current occupants are concerned) recused himself from U.S. v. Virginia, which struck down the male-only admissions policy at the Virginia Military Institute (VMI), because his son was a VMI cadet at the time. This was the right thing to do. That was barely four years into Thomas's tenure on the Court. Now, almost 30 (eek!) years in, he's refusing to recuse himself from cases in which his wife is far more involved than his son was in U.S. v. Virginia.
Thomas's record on the Court over the decades has consistently ranged from mediocre to infuriating and back again, but something big has changed between 1996 and 2022. Thomas and, it seems, the whole GOP no longer care about appearances, or about the Court's reputation outside their own bubble. This is disturbing. As Lucian points out, SCOTUS can do whatever it wants, but nevertheless, what gives it and its decisions legitimacy is our respect for the institution and the law. That respect has been shaky for a while now, and it's getting shakier. Have the "justices" given any thought to where this ever-shakier reputation is almost certainly leading -- to a Court whose decisions are considered illegitimate and thus can be ignored by anyone who disagrees with them?
You wrote: "Have the "justices" given any thought to where this ever-shakier reputation is almost certainly leading -- to a Court whose decisions are considered illegitimate and thus can be ignored by anyone who disagrees with them?"
That was my thought exactly. If Ginni and hubby can exercise their "rights" to do whatever they want, regardless of law, of precedent, or appearance, then what makes them freer than anyone else? Why not the rest of us? He and she and Roberts (who has no role whatsoever in my opinion) have no scruples or ethics or any other moral concern; they have made this Stench Bench completely impotent and useless. Maybe we should consider scrapping it altogether? Maybe we could, if freedom means everything and rights are whatever anyone wants to describe them and nothing means anything anymore.
It's tempting, but as usual "tear it down" is easier, faster, and more satisfying than building something else up from scratch. I have the same reaction when progressive types call for a constitutional convention: They don't know WTF they're asking for. The right wing would *love* a constitutional convention," and they're perilously close to controlling enough state legislatures to call one (though not as close as they were a few years ago). One of the big lessons of Covid-19 is that many, many USians are all me-me-me and to hell with anybody else -- and the GOP is pitching quite effectively to this crowd.
Fwiw, this is the worst SCOTUS in my lifetime, but I wasn't around for the Court that decided Plessy v. Ferguson, or Scott v. Sandford. My benchmark looks more like the Warren Court of the 1960s, and compared to that -- well, there's nowhere to go but up.
I understand and appreciate your pain what you see is an insoluble problem. Behold, there is a long-standing remedy that would allow the United States District Court for the District of Columbia to issue a preliminary and permanent injunction against the errant Supreme Court Justice Clarence Thomas, provided that the moving party is found to have standing to bring suit. Allow me to explain.
The Recusal statute 28 USC § 455 stands only second to the Constitution in legal authority. No Code of Conduct or extrinsic ethical standard is needed, and the statute is self-enforcing, meaning that enforcement of the ban on participating in a proceeding in which a justice, judge, or magistrate judge is ethically compromised or has a conflict of interest. The fact that Justice Thomas' Supreme Court colleagues have turned a blind eye towards his dereliction of duty, and have not excluded him from the Court's conference room where cases are discussed and decided is their own wrongful conduct; and their refusal to act is, legally speaking, a fraud on the United States. Their dereliction of duty is especially egregious when it became known this past week that justice Thomas' wife, Ginny Thomas, has been engaged in the political consulting business for a lengthy period of time, and has collected fees from Republican donors and other like-minded interests to the tune of several hundred thousand dollars. This was mentioned on Lawrence O'Donnell's show. I'll take them at their word that Ginny Thomas has been monetizing her husband's appointment to the Supreme Court in order to gain personal access to members of the White House staff, in particular former Chief of Staff Mark Meadows. Emails in the possession of the House Select Committee on the January 6 Insurrection are conclusive on that point. When the matter came before the court as to whether those emails, and other emails attributed to other close confidantes of former President Trump, Justice Thomas was the sole judicial vote against the former president's litigation position. The fact that justice Thomas was down voted 8 to 1, doesn't make his wrongful conduct any less egregious. As a procedural matter, his actions are not moot; because they reflect a course of conduct that he is been engaged in for an extended length of time. He is, and has been, willing and able to feather his wife's financial nest by providing access to former members of the Trump administration, with Ginny Thomas as the gatekeeper, a lucrative situation from which she has profited greatly. As such, a federal prosecutor could determine that such personal access by someone profiting from her husband's official position constitutes a fraud on the United States, punishable under 18 USC 371, the federal fraud statute. Additionally, indictments for mail fraud and wire fraud, 18 USC 1341, and 1343 could be alleged and proved, based upon her billing records for her political consulting practice. I will not speculate as to whether those consequences will actually occur, but the grounds are there.
As to the remedy, there is a civil action that would allow a Federal District Court to impose discipline on a sitting justice, judge, or magistrate judge who fails to follow the law and do his duty to recuse himself in a manner in which he, or a close relative, has a conflicting financial interest. That sort of intervention is authorized by a statute dating to the enactment of the Judiciary Act of 1789, now codified as 28 USC §1651(a). This statute goes by the title All Writs Act (AWA). Section 14 of the Judiciary Act became known as the 'all-writs' provision of the Act, once described as "the most expansive and open-ended language" of the Judiciary Act. It allows a federal court to "avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids as calculated in its sound judgment to achieve the ends of justice entrusted to it." United States v. N.Y. Tel. Co. 434 U.S. 159, 172-73 (1977). Application of the act is reserved for extraordinary situations for which there is no other discernible remedy.
The text of the act is as follows: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of the court which has jurisdiction. (Basically that means that a court can grant ex parte relief, unless the adverse party appears and establishes good cause why the court's order should be withdrawn).
The rules governing a court asked to grant such extraordinary relief are as follows, and there are four specific requirements:
* There must be an absence of alternative remedies, meaning that the AWA is applicable only when no other judicial tools are available.
* There must be an independent basis for jurisdiction. The act authorizes writs in aid of jurisdiction, but it does not itself create any federal subject matter jurisdiction. This is the reverse case of Marbury versus Madison, where Chief Justice John Marshall found that Congress lacked the constitutional authority to expand the Supreme Court's original jurisdiction. Original jurisdiction here lies in the District Court wherein the cause of action arose giving rise to a claim for relief. Subject matter jurisdiction is set forth in the Recusal statute quoted above; together with the allegation that Justice Clarence Thomas had violated his statutory obligation to recuse himself in matters involving his wife's business affairs culminating in her leveraging her marital relationship with Justice Thomas for financial gain, which gain also redounds to him. No further allegation is required, other than the petitioning party having a judicially cognizable legal interest to have standing to sue in petitioning the District Court take action.
In addition to the monetary gain that Ginny Thomas is alleged to have acquired using her husband's high judicial position to leverage access to former President Trump's close political aides and White House functionaries, there is the impact that her activities have had on slowing the investigation of the House Select Committee on the January 6 Insurrection. That constitutes intentional interference with an ongoing legislative proceeding and fact-finding investigation, and interference that have Justice Thomas apparently concurred in. Then dereliction of duty constitutes a fraud against the United States, for which he should be held to account.
* There must be a statement describing the necessary or appropriate aid of jurisdiction to the particular case. There must be an allegation that there is no currently applicable and enforceable code of conduct that would have deterred or penalized Justice Thomas from abusing his position for financial gain, or partisan political purposes, where financial gain to his wife's political consulting business was a distinct likelihood. He's done it before; and there's no reason to expect that he will not do it again. There should also be an allegation that the internal rules of the Supreme Court do not give the Chief Justice the power to suspend an Associate Justice for noncompliance with the Recusal Act. No other branch of government other than the Office of the President, and the President himself, leaves it to the incumbent officeholder's own conscience and sense of duty the decision whether to recuse himself from a particular matter at hand because of its inherent conflict of interest and self-dealing. That statement in and of itself would, in my view, compel a District Court to take action where palpable wrongdoing is discovered. As we have repeatedly seen, impeachment is not an effective remedy, either in the case of the presidency itself, nor is it sufficient to discipline incumbent members of the Supreme Court. President Trump was twice impeached for misconduct in office, and the Constitution provides that he may be criminally punished after he left office. A justice of the Supreme Court may also be impeached, but the impeachment remedy is itself essentially a dead letter realistically.
What could be sought is a mandatory prohibitory injunction to cease-and-desist whatever he was doing by either act or omission that allowed Ginny Thomas to profit from her relationship with him. The burden of proof is upon him to establish by clear and convincing evidence that he had nothing to do with her political consulting business. The choice will be really that she shutters her business; or he retires from the Supreme Court bench.
* The relief sought under the AWA must comport with usages and principles of law. Of all the requirements, and injunction against further wrongdoing is the easiest to justify. There are numerous statutes, rules, and regulations prohibiting federal officials and their employees from leveraging their federal jobs for outside financial gain. The fact that Justice Thomas knew about his wife's activities, and is presumed to know about her lucrative consulting practice, is itself a reason to grant the injunction. Even if Ginny was not in the business of political consulting, her trading on her marital relationship with Clarence to achieve illegitimate political ends in the form of supporting a violent insurrection against the American government constitutes dereliction of duty on his part and a violation of his own Oath of Office to support and defend the Constitution of the United States against all enemies foreign and domestic. He is presumed to know the consequences of his acts.
WELL...I simply love this explanation and I pray you are absolutely correct!! Will Congress enact these principles? Is the DOJ involved?
Congress doesn't have to enact these principles. They are already part of the law, and they have been a part of the law in one way or another since 1789. What I am saying is that someone was standing to sue, and that might include a congressman, the House Select Committee on the Investigation of the January 6 Insurrection, and conceivably, the Justice Department, has a way of compelling Justice Thomas to recuse himself in any matter involving the ongoing investigation. The Justice Department may also have a fraud case against Clarence and Ginny Thomas, because this goes far beyond freedom of speech.
I wish you would send this to Adam Schiff or Jamie Raskin.
Okay then, it will be the Justice Department taking hold of all of this. Thanks!
We can only hope they do. Call your congressional representative.
This is the kind of post that makes me such a devoted follower of LKTIV's substack. I come for Lucian and stay for the enlightened and informed readers and their responses.
I continue to be gobsmacked that we keep referring back to the Constitution as it was written, knowing that we now live in a society, and with technology, they could never have dreamed of. If tasked to write a Constitution today, it would look vastly different than our current document. I believe the original authors knew that society would most certainly change and evolve, and built in remedies for the changes, but these seem to be ignored by our current court. Our society is not static, and by living with and by a document that the majority of the current justices view as static and unchangeable is (IMHO) just ludicrous
I think your argument is less with the Constitution and more with the current SCOTUS majority and, more generally, the "originalist" faction of the GOP. You may have noticed that there have been significant changes over the decades and centuries since the Constitution was born. I doubt this would surprise the founders at all, though some of them might be gobsmacked by some of the changes. Abolishing slavery? Prohibiting *liquor*? Letting women vote? Those changes came about through constitutional amendment (a process built into the Constitution) but some equally momentous ones came about as a result of judicial review: think Brown v. Board of Education of Topeka, Loving v. Virginia (in which the Court used the 14th Amendment to strike down state laws against interracial marriage), Roe v. Wade, Obergefell v. Hodges (in which the Court used the 14th Amendment again, this time to legalize same-sex marriage), and so on and on.
You are absolutely correct. I was trying to convey that what I have a hard time with is the originalist majority on the court who seem to believe that the original meaning of the words in the Constitution should apply to today’s society without exception.
And if you *didn't* have a hard time with it, that would be a problem! The originalist majority isn't an accident: the GOP has been working toward it for decades, and they hit paydirt during the Trump administration -- in part because the Dems didn't have the votes to get Merrick Garland confirmed during the Obama administration. "Originalism" is a (sort of) polite code word for "white-male-centric perspective."
And another thing: When the Constitution was written, the U.S. was largely agrarian. Concentrated corporate power wasn't a thing. The founders carefully devised checks and balances among the executive, the legislative, and the judiciary branches, but not against economic power coming from outside the government. For at least a century, some of the loudest screaming from the right has come when anyone tries to check the power of big business to do whatever it wants. In the "originalist" view, the government has minimal power to check big business. (The anti-originalists gain the upper hand when unchecked big business makes such a big mess that government has to bail it out, as during the Progressive Era, the New Deal, and after the big crash of 2008.)
So there's method in what to many of us looks like madness. Since running on a "Big Business über alles" platform wouldn't have wide appeal, they dress it up with "traditional family values" and all that culture war stuff, with a hefty dose of racism and xenophobia.
And there is always room for interpretation, just not the absurd way the current Federalists and the evangelicals "believe" it should be.
Can't Chief Justice Roberts chastise Thomas and urge (or force) his recusal in matters concerning January 6th?
I have read there is some hope Roberts will act, if only behind the scenes, because his own standing in history with "The Roberts Court" will be badly tarnished by Thomas's actions (or failure to recuse). But the real solution is what I am seeing all over the country as We The People are working very hard to take back our democracy.
Corruption comes to even the best of ideas. The American people have seen this before. The progressive era (1895/1920) was a reaction to deep corruption and blatant criminality throughout the country. Reforms in the 1930's and 1960's were response to injustice and social bigotry and exploitation. Virginia Thomas legacy will be a part off the next reform/Progressive era. The wheel keeps turning the current Republican party will eventually get the historical boot.
Maybe that will happen, eventually. But if Paul Krugman is "terrified" about what the next half-decade (or less!) may hold, then I'm terrified as well. This is what Krugman wrote, just a couple of days ago:
"I was born here, and I have led a very privileged life — but I'm not complacent. I'm terrified about our country's future — and not about the distant future, either. This nation could be unrecognizable three or four years from now."
Yes, Judith, I agree that this coming from Krugman is terrifying!
Bravo, Lucian! This is the best and clearest explanation I've seen on the Clarence Thomas question. I've been trying to explain this to outraged friends (whose outrage I share) for the last week or so. Now, I'll just refer them to you. Thank you.
Not so fast. Ginni Thomas has a law degree from Creighton University—is sedition and treason acceptable to members of the Bar? Is this how Jesuits screen candidates at their law school? I think it behooves Creighton U. to denounce this individual—let them release the kraken ON HER. She is a disgrace; her husband MUST NOT rule on Jan. 6th insurrection cases because his wife was DIRECTLY INVOLVED with treasonous activities.
I also think Clarence Thomas deliberately avoided attendance on Judge Jackson-Brown’s hearing because he KNEW the right-wingnuts would disparage her over having a white spouse. It backfired when news of Virginia Thomas’s seditious activities blew up in the press.
THE WHOLE THING STINKS OF RNC CORRUPTION.
That brings to mind one thing-if the situation were reversed and Thomas was the nominee instead of Brown-Jackson, I wonder if they'd vote to confirm him? This confirmation hearing is bringing out all the racists and I would not doubt that he'd have a hard time as well. If it were up to the GOP right now, I think they'd keep the SC white. They're that bad.
Well, it is rather clear that given the history of the court, and the legal issues surrounding stare decisis as well as Marbury v Madison, any attempt by the legislature or executive to "legislate" anything related to the judiciary would be declared unconstitutional on its face. I imagine that it would require a constitutional amendment to fix this issue.
You need to know that Passaic, New Jersey has street named after all the presidents up to Lincoln except for John Adams, and indeed the city named a street after his son, Quincy. indeed it is called Quincy.
Thank you for history, legal shenanigans, and clarity.
As much as I would like to see both of them on a midnight train to Georgia, they are not ever leaving. Thanks for your wonderful analysis…
Fucking A! I am depressed now!