Loss of trust in the Supreme Court is self-inflicted

York Dispatch editorial board
Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, D.C., on April 23, 2021. (Erin Schaff/Pool/Getty Images/TNS)

Supreme Court Justice Clarence Thomas, appearing at a conference in Dallas earlier this month, complained that the recently leaked draft opinion reversing the right to abortion has seriously damaged trust at the court.

“What happened at the court is tremendously bad,” Thomas said. “I wonder how long we’re going to have these institutions at the rate we’re undermining them.”

Thomas is right that trust at (and in) the high court is eroding. He’s also correct that the court, among other political institutions, is being undermined. But he is incorrectly or (more likely) willfully misidentifying the cause.

Public opinion of the court had been declining long before the May 2 disclosure of the Roe v. Wade-torpedoing opinion penned by Justice Samuel Alito — and justifiably so. Contributing to the freefall:

  • Senate Majority Leader Mitch McConnell and Senate Republicans’ bald-faced abuses of Senate norms and rules to muscle conservative justices onto the bench. Bum-rushing thinly qualified Amy Coney Barret onto the court just days before the 2020 presidential election after blockading Obama-appointed jurist Merrick Garland’s nomination for nearly a year was the height of partisan hypocrisy — and deservedly paints the court as a partisan tool in the public’s mind.
  • Consistently partisan decisions. From gerrymandering and voting rights to corporate protections to abortion rights, the court has reliably voted along conservative lines. Added to seemingly ideological decisions, the conservative majority has increasingly used its so-called shadow docket — through which it responds to issues on an expedited basis absent substantive briefings or oral arguments — to craft law, most recently and notably to let stand Mississippi’s ban on abortion after 15 weeks. Such actions go a long way to explaining why 62 percent of those polled — across party lines — believe the court’s decisions are based on political beliefs.
  • Public comments from the justices. It does the court’s reputation no service when justices including Thomas and Alito routinely appear before some of the nation’s right-most organizations to espouse political, and sometimes divisive, opinions.

But ultimately, trust in the court is being diminished by the actions of the justices themselves, Thomas foremost among them.

It was publicly revealed last week that the justice’s wife, conservative firebrand Virginia “Ginni” Thomas, had lobbied lawmakers in Arizona to reverse the 2020 presidential election results in their state and declare Donald Trump the victor.

“The nation’s eyes are on you now,” she emailed Republican leaders in the state. “Please consider what will happen to the nation we all love if you do not stand up and lead.”

FILE - Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, arrives to watch Amy Coney Barrett take the Constitutional Oath on the South Lawn of the White House in Washington,Oct. 26, 2020, after Barrett was confirmed by the Senate earlier in the evening. Virginia Thomas sent a series of increasingly urgent text messages imploring White House Chief of Staff Mark Meadows to act to overturn the 2020 presidential election according to copies of the messages obtained by The Washington Post and CBS News. (AP Photo/Patrick Semansky, File)

This was just the latest revelation regarding Ginni Thomas’s endeavors in support of Trump’s efforts to overturn the election. She campaigned for weeks via email with White House Chief of Staff Mark Meadows in the weeks following the election and attended the Jan. 6 rally that preceded the Capitol riots. Such was her involvement that the House committee investigating the Jan. 6 events has invited her testimony.

Yet despite is wife’s deep-rooted engagement, Justice Thomas has refused to recuse himself from voting on Jan. 6-related matters that have or may come before the court. Indeed, he was the lone dissenter this January in an 8-1 decision to reject Trump’s request to withhold records from the Jan. 6 committee.

Still, Thomas worries more about tactics like peaceful protests outside justices’ homes than the effects his actions are having on public trust and confidence in the court. (Tactics he claims the right would never adopt, ignoring decades of pro-life activists terrorizing abortion clinics, their employees and their patients, including at their homes and churches.)

If Thomas and his high court colleagues want answers as to their diminishing public stature, they should look not to a leaked decision but rather, for the nearest mirror.