Clarence Thomas’s reaction to his wife Ginni’s text messages says it all. This is what we can do

The Supreme Court justice should recuse himself from all 2020 election-related cases and, ideally, resign

Supreme Court Virginia Thomas (Copyright 2022 The Associated Press. All rights reserved.)

After the 2020 election and prior to the January 6 coup attempt, Ginni Thomas, conservative activist and wife of Supreme Court Justice Clarence Thomas, repeatedly texted White House chief of staff Mark Meadows. She urged him to tell President Donald Trump to refuse to concede while an “army” gathered to seize power. She also claimed falsely that there had been massive election fraud in favor of Democratic winner Joe Biden. She added that Trump’s enemies should be sent to Guantanamo Bay.

The text messages, which had been provided to the January 6 commission investigating the coup, and which were made public by the Washington Post, led to widespread criticism of Clarence Thomas. The messages were obtained by the committee only after the Supreme Court ordered them released, 8-1. Thomas was the only dissenting vote. In short, he voted to prevent the committee from obtaining the texts that implicate his wife in at least cheering on, and possibly in planning and encouraging, the insurrection.

That’s a massive conflict of interest. Thomas should have recused himself. He should also recuse himself from any 2020 election-related cases, as Minnesota Senator Amy Klobuchar has argued. More, his failure to acknowledge this conflict of interest suggests strongly that he is unfit to serve on the court and should resign.

Unfortunately, holding Supreme Court justices accountable is difficult, especially when they are backed by a strongly partisan Republican party.

The Democrats do have some mechanisms to investigate Thomas and demand he adopt some minimal ethical standards. The first and best step is for the January 6 commission to stop dawdling, and hold open public hearings.

Supreme Court justices serve for life, and they have little oversight. No one can make Clarence Thomas recuse himself from cases where he has an obvious conflict of interest. A federal panel of judges dismissed 83 ethics complaints against Justice Brett Kavanaugh a couple of years ago because there’s simply no mechanism for lower courts to hold judges on the Supreme Court to any ethical standard.

The main mechanism for sanctioning judges is impeachment. Congress can remove judges much as they can remove presidents. It requires a majority vote of the House to bring charges, and a two-thirds vote of the Senate for removal.

Samuel Chase is the only Supreme Court Justice to ever be impeached; the House brought charges against him in 1805, but he was not convicted. It’s basically impossible to imagine that an evenly divided, hyper-partisan Senate could muster the two-thirds votes needed to remove Thomas. Republicans like Texas Senator Ted Cruz were intimately involved in Trump’s insurrection attempt themselves. They’re not going to remove Clarence Thomas for possibly being involved.

Still, Democrats shouldn’t give up. Right now, Thomas looks impregnable. But that could change if public opinion shifts dramatically. If he becomes a byword for corruption and insurrection, it could at least lead him to be more cautious about his flagrant corruption. It might push some of his colleagues to suggest in private or even in public that he needs to be more circumspect. It could help create greater impetus to reform the court.

To shift public opinion, you need to get people to pay attention. And the best way to focus public attention is through hearings.

So far, the January 6 commission has collected evidence and testimony. They’ve won some legal victories — like the Supreme Court case that gave them access to Ginni Thomas’ texts and a trove of other information. And they’ve subpoenaed numerous Republican officials and Trump advisors. But they’ve been glacially slow in scheduling public hearings.

It’s been 15 months now since the insurrection happened in January 2021. There has been a steady drip-drip of revelations about those events. But without a major, sustained public accounting, most Americans are going to assume that January 6 wasn’t a big deal, or that it’s been dealt with adequately.

The committee is supposedly focusing closely on its report, and hopes that when released, that report will have a major effect on public opinion. Political scientist Jonathan Bernstein, though, explains that this is nonsense. Even massively successful reports, like the 9/11 commission bestseller, don’t move public opinion much, because (even if they buy them) people just don’t read large technical white papers.

In contrast, Bernstein says, “Live testimony can produce great TV. And while even a successful rollout of a report will be hard to keep in the news for more than a few days, a series of hearings can produce weeks of developments.”

Bernstein was writing before the most recent revelations about Thomas. Now that we know a Supreme Court justice has been implicated in the insurrection and the cover-up, hearings are more vital than ever.

Politicians are risk-averse and the stakes here are high. No doubt Democrats are worried that hearings will give Republicans a chance to grandstand, make partisan appeals, and lie. A report seems easier to control and calibrate.

But at some point, someone has to stand up for democracy. There’s strong evidence that high-ranking Republican members of the executive, legislative, and judicial branches were involved in a violent effort to overthrow the 2020 election. If they aren’t held accountable — if their roles aren’t even publicly exposed — what’s to stop them from trying to overthrow the next election, or the next?

Ginni Thomas’ texts are just the latest reminder that we’re in a crisis. Democrats need to pull all the alarm bells they have before the midterms and the party of insurrection has a chance to seize control of the legislature again. The January 6 Commission needs to hold hearings. And Ginni and Clarence Thomas need to publicly explain exactly how and to what extent they were involved in the coup.