If the Court loses its legitimacy, can its authority be far behind?
To the Honorable Clarence Thomas, associate justice of the Supreme Court of the United States:
Have you ever met your wife?
Yes, it’s an impudent question, but it seems justified by the speech you gave Friday at a judicial conference in Atlanta and a question-and-answer session that followed. In an obvious reference to the bombshell leak of a draft opinion overturning Roe v. Wade, you bemoaned that institutions are being “bullied” and said the judiciary is threatened if people are unwilling to “live with outcomes we don’t agree with.”
You said this despite the fact that your bride of 35 years, conservative activist Virginia “Ginni” Thomas, made headlines earlier this year when it was revealed she schemed with the Trump White House to keep him in power despite his election defeat. She echoed his baseless claims of fraud and even joined the Jan. 6 mob that rallied to overturn the election, though she claims she broke off from them before they stormed the U.S. Capitol.
Mrs. Thomas, then, it might fairly be said, is a poster child for those who would bully institutions or refuse to live with outcomes they dislike. For you to raise those concerns with a straight face and no mention of her name suggests that either the two of you have not been properly introduced or that you are a man of staggering hypocrisy and deep intellectual dishonesty. One would hate to find those qualities in a man overseeing traffic court, much less in one sitting on the Supreme Court.
Here’s the thing, sir: There are rules. The adherence to them, the ability to trust them, is what allows a society to function. Some of the rules are written, others are not, but the fact that they aren’t makes them no less critical. One such unwritten rule is that the collegial confidentiality of the high court is sacrosanct. So yes, it’s unfortunate some leaker leaked.
But he or she is hardly the first person to violate the court’s unwritten norms. One of your colleagues occupies a seat stolen for him from President Obama. Another occupies a seat she was crammed into eight days before the 2020 election by the same Republicans who had said that nine months out was too close to Election Day 2016 to consider Obama’s nominee. Some transparently lied when they testified in confirmation hearings that they respected Roe as settled law. And really, sir, isn’t it a bit unseemly for the wife of a Supreme Court justice to be part of a conspiracy to overturn an election? Or for him to fail to recuse himself from any cases arising therefrom?
As Americans, we have traditionally respected Supreme Court rulings even when they were godawful, even when they set the nation back, because however dumb or dreadful they were, we considered the court itself an apolitical and duly constituted tribunal. In a word, it was legitimate. But in their bare knuckles, end-justifies-the-means approach to the court, conservatives have devastated that bit of civic faith.
Small wonder a September Gallup poll found approval of the court at 40 percent, the lowest Gallup has ever recorded, and down sharply from 58 percent the year before. One cringes to think where it stands right now. And one wonders: If the Court loses its legitimacy, can its authority be far behind?
In the face of that question, your issue is that an anonymous leaker violated confidentiality? Sir, maybe that person just wonders why he or she should be required to respect the rules.
It doesn’t seem like anyone else is.
Leonard Pitts Jr. is a columnist for the Miami Herald.