Photograph by Doug Mills/AP Photoat the time, Breitbart News. ‘‘She’s an operator;
she stays behind the scenes,’’ Bannon said in an
interview. ‘‘Unlike a lot of people who just talk,
she gets shit done.’’
The Thomases have long emphasized how
little distance there is between them. As Justice
Thomas once wrote, his searing 1991 confi rma-
tion, buff eted by sexual- harassment allegations,
brought them closer together: ‘‘The fi ery trial
through which we passed had the eff ect of meld-
ing us into one being — an amalgam, as we like
to say.’’ At the Heritage Foundation celebration,
he made it clear that bruised feelings about the
‘‘very, very dark time’’ of his confi rmation have
lingered, thanking ‘‘the senators who voted for
me, all 52 of them.’’ He named supporters who
had stuck by him, including Heritage’s president
at the time, Kay Coles James, who he said was
‘‘among my prayer partners 30 years ago.’’ And
he called his wife ‘‘the rock of my life.’’
While no one suggests that Thomas is writing
his opinions to please his wife, he does speak of
a shared Thomas philosophy. And his wife has
advocated hard-line positions on many of the
cultural and political issues that come before
the justices, presenting an unprecedented
conundrum for the Supreme Court. Orin Kerr,
a law professor at the University of California,
Berkeley, said that while there are no clear-cut
rules outlining when justices need to recuse
themselves, there are appearance concerns.
‘‘I’m sure there are justices’ spouses who have
had strong opinions about politics,’’ Kerr said.
‘‘What’s unusual here is that Justice Thomas’s
wife is an activist in politics. Historically, this
is the fi rst example of something like this that I
can think of at the Supreme Court.’’
Justice Thomas has fl ipped such criticisms
on their head, saying that those who raise such
issues were ‘‘bent on undermining’’ the court.
And he defended ‘‘my bride’’ in a 2011 speech
at an event sponsored by the Federalist Soci-
ety, a conservative legal group, as reported by
Politico at the time. He said she worked ‘‘24/7
every day in defense of liberty,’’ adding, ‘‘We
are equally yoked, and we love being with each
other because we love the same things.’’ If the
Thomases are at the height of their powers, the
question, now, is how they will use that power in
the years to come.
‘‘He has charted a very radical approach to
judging — it’s surprising, actually, how far the
court has moved in his direction,’’ John Yoo,
a law professor at U.C.- Berkeley and former
Thomas clerk known for drafting some of the
‘‘torture memos’’ under President George W.
Bush, said during a discussion at the Heritage
event. (Yoo also advised former Vice President
Mike Pence that he did not have the authority
to reject electoral votes on Jan. 6.) ‘‘What do
you think is going to happen in the next 10 years
when he might have a workable
majority of originalists? I think
we’re going to see the fruition of
the last 30 years in the next 10.’’The founders saw the courts as the guardians
of the Constitution. In Federalist No. 78, which
laid out the role of American courts, Alexander
Hamilton wrote that they ‘‘were designed to be
an intermediate body between the people and
the legislature’’ and ‘‘keep the latter within the
limits assigned to their authority.’’ But at the
same time, he wrote, the judiciary would be the
weakest of the new government’s three branches.
While the executive ‘‘holds the sword’’ and the
legislature ‘‘commands the purse,’’ the judiciary
‘‘will always be the least dangerous to the political
rights of the Constitution; because it will be least
in a capacity to annoy or injure them.’’
The Supreme Court must rely on public
acceptance of its decisions. For decades, the
desire to shield the court from charges of parti-
sanship has given rise to institutionalist justices
who uphold certain norms. They avoid opinions
that get too far out ahead of public opinion or
too blithely overturn precedents. Instead they
adhere to the doctrine of stare decisis, for the
most part treating prior decisions as settled law,
and prefer to rule in ways that win broad sup-
port. They also steer clear of attending openly
partisan events.
But as the court has taken a hard right
turn with Trump’s appointments, it is alsoincreasingly seen as composed
of clashing ideologues, both
liberal and conservative, rather
than independent jurists. Even
the court’s newest justice, Amy Coney Barrett,
is sensitive to the charge. ‘‘My goal today is to
convince you that this court is not comprised
of a bunch of partisan hacks,’’ she said during a
speech last year, accompanying Mitch McCo-
nnell at a center named for him at the Univer-
sity of Louisville. And as the court signals an
appetite to take up cases that may well overturn
settled law, including Roe v. Wade, more Amer-
icans view it as increasingly politicized, with a
steep decline over the past year to a 40 percent
approval rating, a new low in Gallup polling.
This dynamic has left Chief Justice John Rob-
erts in an increasingly isolated position as the
Supreme Court’s leading institutionalist. He
refrains from attending partisan legal forums,
like those at the Federalist Society. And his wife,
Jane, stepped down as a litigator at her law fi rm
after his appointment. Justice Thomas, howev-
er, ‘‘believes that human beings have free will
to chart our own course,’’ said Helgi Walker, a
former Thomas clerk and a partner at Gibson
Dunn. ‘‘And I have no doubt that applies, perhaps
especially so, to his wife.’’ That said, she added, he
‘‘takes direction from no one but the law.’’
Thomas has also rejected the institutionalist
approach when it comes to the doctrine of stare
decisis. ‘‘When faced with a demonstrably erro-
neous precedent, my rule is simple,’’ he wrote in2.27.22The Thomases during
his Supreme Court
confirmation hearings
in 1991.34