Inside the GOP's 'diabolical' scheme to delegitimize the American justice system

I probably shouldn’t do this. I mean, little can result from picking on George F. Will. The Post’s elder pundit peaked long ago. He’s heading for pasture. At this point, singling him out is kinda punching down.

Even so, it bears repeating that freedom, equality and justice are not universally valued, though those who don’t value them are smart enough to say they do. To the “conservative mind,” the who and the whom in “who is doing what to whom?” are more important than the what. When the who and the whom are the correct people, all is well.

In other words, when members of the ingroup do bad things, they aren’t necessarily bad. When members of the outgroup do good things, they aren’t necessarily good. It all depends on who is doing what to whom. It’s a worldview exceedingly amenable to moral corruption.

Consider the Republicans on the Senate Judiciary Committee.

Almost to a person, they had nothing but kind things to say about President Joe Biden’s nominee, Judge Ketanji Brown Jackson.

But despite all the positives making her supremely prepared to serve on the Supreme Court, there was a negative they couldn’t overcome. The committee deadlocked last night, 11-11, because the Republicans could not bring themselves to vote for a member of the outgroup. (They can’t stop a forthcoming floor vote to confirm Judge Jackson.)

That the Senate Republicans didn’t bother fabricating a rationale to justify voting against her should reveal their fundamental dishonesty. They say qualifications matter. They don’t. Qualifications aren’t the point. The who is. Amy Coney Barrett? Unqualified, yet she’s one of us, so yes. Judge Jackson? Super qualified, yet she’s not one of us, so no.

For all their complaining about moral relativism among liberals and other people they don’t like, the GOP’s current worldview is nothing but morally relative. Organizing principles such as democracy are good as long as they serve their ends. They are bad as soon as they don’t.

It’s moral corruption.

Throwing Goerge F. Will on this heap of dishonesty might seem unfair. After all, he’s labored in apparent good faith to stake out a magical middle ground between GOP Trumpists and whatever boogiemen he can conjure up on the left. But Will, like the GOP, isn’t what he seems.

His latest is about Ginni Thomas, the spouse of Justice Clarence Thomas. It was reported last month that she was connected to the J6 insurrection. Though the extent of her involvement is unclear, she was nevertheless involved. That fact is beyond dispute. She exchanged 29 text messages with former White House Chief of Staff Mark Meadows before and after J6 urging him to help overturn the 2020 election.

Given her husband is the longest serving member of the current court who has produced legions of copy-cat jurists, and given that her access to power is made possible by their marriage, it’s natural to ask if and to what degree he knew about her political activities, especially whether he shared her views, which were, you might say, treasonous.

It’s natural to ask whether Thomas should recuse himself from future cases involving J6 defendants. (He has already presided over one case on the question of whether the former president’s former executive privilege still applied to documents that might feature his wife. He was the only vote of dissent.) Ginni Thomas was invested in it. Recusal would be the minimum required to dispel the appearance of conflict.

Enter George F. Will for a round of pooh-poohing.

With a sneering phony erudition he is reputed for, Will argues that Clarence Thomas need not recuse himself. Why? he asked.

Unless there was a bribe, there’s no corruption. Judges and justices recuse themselves too much over petty things anyway. And what if the tables were turned: “Would Thomas’s current critics argue that a justice whose spouse is an environmental activist should recuse in cases involving the Environmental Protection Agency? Unlikely.”

It’s hard for me to imagine what it feels like to say with a straight face that “an environmental activist” is the same as a person cheering the downfall of the republic before being disappointed in the former vice president for not playing along with a conspiracy to bring it down.

Then again, maybe it’s not that hard. The question is not one of right and wrong, good and bad but instead of who is doing what to whom.

It’s moral corruption.

Sure, George Will is heading to pasture. But even this so-called anti-Trump conservative can’t help himself. He must defend a Republican justice by narrowing the meaning of corruption so that unless money is exchanged, it’s no such thing, by minimizing Ginni Thomas’s role in J6 and undermining the ethics of recusal.

There’s more to corruption than these Republicans want you to know. That’s why I called up Melissa Murray, professor of law at NYU School of Law and co-host of Strict Scrutiny, a podcast about courts and law.

“It doesn't matter if Justice Thomas can be impartial,” Professor Murray said. “What matters is that some will assume he can’t be because of his wife's participation in J6. It will give the court, I think, a degree of illegitimacy difficult to reconcile, indeed very difficult."

I talked to a court watcher recently. I asked if Ginni Thomas’ supportive role in the J6 has corrupted the court? He said, no. That's going too far. It's subtler than that, he said. What do you think?

I don't think it's fair to say her actions lead to the court itself being corrupt. I would never want to appear to endorse the view that husbands and wives are entwined in terms of their employment lives.

I do think, though, that for someone of Justice Thomas's stature, this cannot be a welcome development. One of the things the court depends on is the public's perception of the court as legitimate.

It doesn't have to be a conclusive view that the court is illegitimate. It only has to be the perception that there's something afoot in the court.

Unfortunately, with respect to Thomas's texts to Mark Meadows is that they give the impression, whether true or not, that she was deeply involved in the January 6 events, and that her husband, possibly in his own interactions, and on the court and in dealing with cases involving the events of January 6, could have been working in a way intended to shield her or prevent her participation from coming to light.

We don't know if that is the case. But that's not the point. The point is the appearance of these things being inextricably tied to him – that perhaps he was not impartial. That’s the problem.

I do think her activities – and I don't just mean on J6. There have been at least three credible articles about her activities in Washington separate and apart from J6. It does appear based on that reporting that much of her business, her lobbying work or consulting work in Washington is about peddling access to the corridors of power.

So for the public, it begs the question: is one of those corridors of power her home in which she talks to her husband about these things? Nobody knows. But it is the appearance of that kind of impropriety, that kind of overlap, that I think is problematic for the court.

I suppose I was taking an expansive notion of “corruption.” Not corruption, as in a direct pipeline from J6 to the court. Instead, corruption, as in the court’s image and reputation are corrupted.

Yeah. I think those are subtly distinct.

I will remind you it was only three or four months ago we saw three justices of the court, including Justice Thomas, take to the hustings to insist they were not “partisan hacks.” That was Justice Barrett's term. I think that was a calculated move in light of the real blowback they got in the wake of the Texas abortion case. [The court routinely stops new laws pending judicial review, but didn’t for the vigilante abortion law.]

I think they claimed they were not politicized, not partisan hacks, because they understood the public viewed what happened with the Texas abortion case as inextricably linked to a change in the court’s personnel now that it’s now at 6-3 conservative supermajority.

Suddenly they seem poised to overturn abortion rights and allow a patently unconstitutional law to be in effect. That, I think, to the public looks quite political yet justices have taken great pains to refute that.

If that is where we were three months ago, [news about Ginni Thomas] can't be good today. This seems to be really, you know, a problem.

I'm sure there are conversations between the chief justice and Justice Thomas about how to proceed, what it will mean. There's a case likely to come before the court on John Eastman versus [the J6 committee].

Eastman clerked for Thomas.

It might be an appropriate juncture to think seriously about recusal.

But as you know, Supreme Court justices aren't bound by the same recusal rules as other justices, although there are federal statutes that prevent the justices, and indeed any judge, from hearing a case in which the judge or an immediate member of the family or someone close to the judge would have a stake in the interest.

I think given those text messages it is perhaps fair to say Ginni Thomas might be someone who is interested in the outcome of a particular case because more information could surface about her involvement.

That's not to say she’s leading the charge on the Capitol, but as more of these cases go forward, as the court decides about who can and cannot participate, or should or should not participate, you may get more information about Ginni Thomas and her actions here.

If there is any more information and for that reason, you might consider her someone who is interested in the outcome.

I looked at the statute. I'm struggling to see, if he does not recuse himself, how he avoids breaking the law. Can you explain that?

The statute is perhaps ambiguously worded, leading to an array of interpretations, some requiring Justice Thomas to not participate in the case, others permitting his participation. I think the question of whether he’s violating a federal statute depends on interpretation.

I keep going back to the appearances.

That is the bigger question, right?

Regardless of whether you're breaking the law, you're embroiling the court needlessly in the perception that you are interested.

Again, it doesn't matter if Justice Thomas can be impartial. What matters is that some will assume he can’t be because of his wife's participation in J6. It will give the court, I think, a degree of illegitimacy difficult to reconcile, indeed very difficult to reconcile.

It seems illegitimacy is piled onto by other veneers of illegitimacy. A foreign enemy sabotaged the 2016 Democratic candidate, creating conditions in which the Republican candidate won, who in turn nominated three justices to the court. Is there anything to that?

This question of whether the court appears politically captured, ideologically captured, is a live one, in part, because although the court strives to remain above the fray, it has appeared in recent years to be a political football getting battered about by both sides.

I think the politicization of the court, not by the members of the court themselves, began when Mitch McConnell refused to hold a hearing for Merrick Garland. He istead held up the filling of that vacancy.

The question of the court's politicization began well before 2016. Republicans refused to give hearings to Obama’s federal nominees, refused to give a hearing to Merrick Garland. That began when the Democrats changed the filibuster to get Obama’s judges through.

I mean, this has been building for some time. I don't know if there's a particular event signaling that the court is now irredeemably politicized. It has been a slow build, but it certainly goes back as far as the Obama administration and GOP recalcitrance over the court.

I think the real question is: why is the court so important in the Republican landscape. Why was it important to stonewall Merrick Garland? Why is it important to stonewall lower court appointees?

That's the question we need to ask.

I think we saw the answer with the Affordable Care Act.

They tried repealing it after John Roberts saved it in the first court challenge. They tried, but John McCain famously voted thumbs down.

The Republicans were unable to do through the political process what they hoped to do – scuttle Obamacare. On the heels of that loss in the Senate, they turned to the third branch. They immediately filed a lawsuit in Texas federal court where they said the Affordable Care Act was no longer legitimate. They had zeroed out the penalties.

The Republicans shifted to using the courts as a means of accomplishing what they couldn’t through ordinary politics.

That I think is the critical thing to understand.

Why do they care about the court so much?

The courts are how they scuttle the opposing party's agenda.

So where do we go from here? There’s talk of court-packing and other reforms. That brings us back to what Congress will do.

The discussion of unenumerated rights was, I think, about signaling where the next battles are going to be once they've overturned Roe.

They're going to start thinking about other rights, like the right to marry, the right of parents to raise children the way they choose to.

But I thought the court-packing discussion was interesting, in part, because the president's commission on the courts and the Supreme Court came and went with very little fanfare. It doesn't seem like the Democrats are pushing the prospect of court reform.

So why were the Republicans talking about it so much?

I think this is really a question of a prebuttal.

When the Republican justices overrule Roe this summer, and turn to same-sex marriage or contraception, that will engender a backlash.

I think the American people are going to be gobsmacked when they realize that the Republicans don't want anyone to use birth control.

I think they're going to be like, OK, this is a bridge too far.

I think the American people are going to start thinking about how to rebalance this court. Structural reform is the obvious answer.

I think the Republicans talking about it now, trying to get Judge Ketanji Brown Jackson to insist it’s illegitimate to think about structural reform – that was prebuttal. This is a long winding kind of thing.

But let me just put it to you this way.

We've already seen the Republicans dismantle some of the scaffolding of democracy by having the court refuse to participate in reviewing partisan gerrymander claims. Moreover, the court blessed an array of voter suppression laws by dismantling the preclearance system.

The court, I would argue, has essentially insulated itself from any blowback from the public for its (future) decisions on abortion and other rights, like by dismantling the scaffolding of democratic participation, so that no one can register their objection by voting.

This effort to discredit the prospect of structural reform of the court is the Republicans beginning to sow seeds of doubt about the legitimacy of court-packing or structural reform of the court, as a means of insulating themselves from any public blowback from either abortion or what will happen in the wake of abortion. Does that make sense?

Yes. It's diabolical. Really.

It's really diabolical.