Jurisprudence

Why the Clarence and Ginni Thomas Scandal Vanished From the News

WASHINGTON, DC - OCTOBER 21: (L-R) Associate Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, DC. Clarence Thomas has now served on the Supreme Court for 30 years. He was nominated by former President George H. W.  Bush in 1991 and is the second African-American to serve on the high court, following Justice Thurgood Marshall. (Photo by Drew Angerer/Getty Images)
Associate Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation Drew Angerer/Getty Images

A few short weeks ago we learned, while in the throes of an historic Supreme Court confirmation hearing, that a sitting Supreme Court justice had participated in at least one case in which his wife was (at minimum) an interested party. When news dropped that Virginia “Ginni” Thomas has been texting strategic advice to Mark Meadows, the Trump White House’s chief of staff, while helping coordinate groups making efforts to set aside the 2020 election results, even as the Trump White House planned a litigation strategy around the 2020 election that involved the Supreme Court, there were some immediate overreactions (impeach Thomas) and underreactions (who cares?) followed by the frenzied cacophony of hands wringing and then, nothing.

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With the exception of some week-after apologetics and philosophizing, the Thomases, who have not offered up one word of explanation or justification for this new apparent conflict, yet again surf the wave of public outrage to the peaceful shore of “Nothing Matters LOL.” Clarence Thomas will not be removed. He will not recuse himself from future Jan. 6 cases. Ginni Thomas will not comply with a subpoena or testify before the Jan. 6 Committee. New ethics rules will not be produced by the court that might bind the court such that future conflicts don’t arise. Chief Justice John Roberts will do little or nothing to prevent justices from sitting on cases in which their spouses assist with amicus briefs and do work for parties. Nothing whatsoever will change, and as a consequence, the next revelation about a product of the Thomases’ amazing marriage of openly political work will also someday wash up on the sandy beaches of “Nevermind.”

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It’s easy enough to understand why the Ginni Thomas texts managed to be both horrifying and nothing at the same time. In part they benefit from the soft presumption of comedy that Donald Trump brought to public life. If something is goofy enough, if it involves a Sharpie, or an open plea to the Proud Boys, or the blurting out of a crackpot QAnon theory, then it doesn’t rise to the level of real or substantial political discourse. We would likely have taken Ginni Thomas’ texts more seriously if they implicated actual legal theories as opposed to advocating for the immediate release of the Kraken. Relatedly, it’s easy to blow Ginni off because, as George Will puts it, in his defense of her conduct, “She is, politically, mad as a hatter. The shelves in her mental pantry groan beneath the weight of Trumpian hysterics about the 2020 presidential election having been stolen and the republic’s certain ruination under Joe Biden.” It’s the old “it can’t be serious if it’s bonkers” defense, and the Thomases’ have been reaping the benefit of this particular chestnut for decades. The failure to comprehend that someone can be unserious and deadly serious at the same time may well be one of the reasons democracy is so constantly imperiled.

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The other reason we’ve all moved on is that there is seemingly nothing to be done. Everyone agrees that until and unless there is a binding, enforceable code of conduct on Supreme Court Justices, they will do what they want. Besides, the justices are seemingly unbothered and unfazed by the prospect of plummeting approval ratings and a decline in public confidence. (Today’s shadow docket decision is Exhibit A Billion to that effect) In other words, if the same nine people who are meant to be fighting for the idea of an apolitical court have given up on that project, there’s not much the rest of us can do about it either.

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Of course that is completely wrong. No functioning democracy can operate at the whim of nine individuals, with lifetime tenure, who choose to have no workplace conduct rules at all. The fact is that whether Congress imposes a code of ethics on the high court, or the court enacts one for itself, there could be sustained and bipartisan momentum to create a court that isn’t a punchline to a joke it penned itself. But, of course that is the final reason we have all more or less moved on from Ginni and the is-it-a-coup-or-an-insurrection hair-splittery: it requires precisely the sort of sustained and bipartisan momentum that is difficult to muster when every institution seems to be melting down at the same time. But perhaps that, too, is the lesson. Institutions seem to be melting down all at the same time because of unenforceable norms, limited public attention, and the trickery of suggesting that partisan politics animates all things, including any effort to bolster norms.

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It’s easy to say, as Will does, that rules that regulate the mere appearance of impropriety, of corruption, of quid pro quos, and insider access are just bothersome huffing and puffing that emanates from the losing team, and only when they are losing. That this cynical view is a surefire prescription for yet more impropriety, corruption, quid pro quos, and insider access is undeniable. The only question left is whether in a world of soft norms, does working to enforce the norms of honorable service and non-partisan conduct seem more or less urgent? I would argue that it’s more so, because sniffing at efforts to preserve the appearance of neutrality does nothing but corrode trust on all sides.

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Before we walk away from a world in which we ask that those in power attempt to imagine how their conduct appears, not to their tribes, but to those already inclined to believe that institutions are all garbage anyhow, let’s recall that this ask is a floor, and not a ceiling, for ethical behavior. Instead of scoffing at rules that demand the moral imagination to do better than you are, or at least to appear to care whether you look better than you are, we should brace ourselves for the alternative: that once we give up on the fuzzy soft rules of proper and honorable conduct for public officials, we’ve already given up on everything else.

For more legal analysis from Dahlia Lithwick, listen to the latest episode of the Amicus podcast and subscribe.

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