The Economist March 19th 2022 United States 39Courting trouble
V
irginia thomasmade headlines this week when she con
firmed that she had attended Donald Trump’s preinsurrec
tion protest in Washington, dc, on January 6th 2021. Frankly, it
would have been surprising if she hadn’t.
A wellconnected activist, at the paranoid edge of the conserva
tive establishment, Mrs Thomas was known for her fierce culture
warring long before Mr Trump made it Republican orthodoxy. The
65yearold Omahan abhors feminism and affirmative action, and
believes “America is in a vicious battle for its founding principles”
against the “deep state” and a “fascist left” in which “transsexual
fascists” are prominent. Schooled in such views by Steve Bannon,
a former comrade of Mrs Thomas’s, Mr Trump was happy to pro
mote them. Mrs Thomas was allegedly known in the Trump White
House as the “wreckingball” (which by its standards was saying
something) for her persistence in lobbying the president.
Yet what sets Mrs Thomas apart is not only her activism but al
so the fact that she is married to a Supreme Court justice, Clarence
Thomas. No other scotus spouse has played such an active politi
cal role. And given that Justice Thomas often appears at her work
dos and fulsomely lauds her “24/7...defence of liberty”, perhaps no
scotuscouple has, either. In the light of Mrs Thomas’s efforts to
spread Mr Trump’s lie that the 2020 election was stolen, this has
become newly contentious.
“LOVE MAGA people!!” she wrote on social media as they gath
ered on insurrection day. “GOD BLESS EACH OF YOU STANDING UP
or PRAYING.” She later distanced herself from the violence that en
sued (she says she went home early, because it got chilly). She has
also downplayed it—including by signing a petition excoriating a
House investigation into the riot, for which nearly 800 people
have so far been charged with crimes, as a partisan witchhunt
against “private citizens who have done nothing wrong”.
Recent exposés of Mrs Thomas’s activities have focused on the
potential conflict they represent for her husband. The New York
Timessuggests Mr Trump patronised her only to cultivate Justice
Thomas. The New Yorker warns that the court’s conservative ma
jority is shortly expected to rule on significant affirmativeaction,
gunrights and abortion cases in favour of activists associated
with Mrs Thomas. Many note that Justice Thomas was the only
dissenterfroma SupremeCourtdecisionthatforced Mr Trump to
comply with the January 6th inquiry.
In Justice Thomas’s defence, none of that looks like a clear
breach of conflictofinterest rules. His jurisprudence, it should
also be noted, is in theory sufficient to explain most of his judg
ments without recourse to his politics. A committed originalist,
he is one of the more intellectually consistent jurists on the
bench, as well as the most conservative. Yet, in a divided country,
appearances matter. Public trust in the court is plummeting pre
cisely because it is viewed as too political. That makes Justice
Thomas’s cheerleading for his wife’s activism reckless at best.
It is also at odds with his concern to avoid appearances trou
bling to conservatives. Justice Thomas was a lone dissenter on the
court against the recent expansion of postal voting on the basis
that, even if it were not—as Republicans claimed—fraudulent, he
feared it might seem to be. While ignoring a real, if exaggerated,
liberal concern about his wife’s activism, in other words, he took
care to mollify a baseless conservative gripe.
He is hardly the first justice to reveal his partisan colours.
Ahead of the general election in 2016 the late Ruth Bader Ginsburg
lambasted Mr Trump. Two years later Brett Kavanaugh delivered a
seething partisan rant at his Senate confirmation hearing. He
claimed that Democratic opposition to his nomination to the Su
preme Court was not in response to the allegation of sexual impro
priety he faced, but rather “pentup anger about President Trump”
and “revenge on behalf of the Clintons”. However, Justice Kava
naugh’s partisanship has been somewhat muffled by his institu
tionalism, which urges restraint. Justice Thomas’s jurisprudence,
by contrast, appears to amplify his politics.
His take on the constitution’s original meaning not only leads
him to be unerringly supportive of conservative causes, from gun
rights to Mr Trump. It has also made him unusually dismissive of
opposing views, even when enshrined in legal precedent. When a
past judgment is “demonstrably erroneous”, he wrote in 2019, “we
should not follow it.” Not even the late Antonin Scalia, his fellow
originalist and hero, so presumed to overthrow settled law. “I’m an
originalist and a textualist, not a nut,” Scalia once explained.Originalist sin
Scholars have long admired the cogency of Justice Thomas’s legal
philosophy. It is nonetheless hard to reconcile with the Supreme
Court’s claim to be politically neutral or, given the outsize mediat
ing role that politicians have foisted upon it, a healthy democracy.
And yet the growing bullishness and impatience with precedent
among the court’s dominant conservatives suggest Justice Thom
as’s view, which was once an outlier, is becoming dominant. “One
can be both an admirer of Thomas’s jurisprudence and deeply
fearful of what it portends,” says Steve Vladeck, a legal scholar.
By contrast, it is hard to admire Mrs Thomas’s grievanceped
dling in almost any way. Whatever laudable aims she once held,
she encapsulates the many Republicans whose exaggerated fears
of the left drove them to justify whatever new low Mr Trump had
in store. And yet, unfortunately for Justice Thomas, an admirably
selfmade man, her activism and his judging are comparable.
In politics and the law, both Thomases are too intolerant of op
posing views—even when they represent the settled opinion of
most Americans and, in Justice Thomas’s case, legal tradition.
This equivalence is themosttroubling significance of Mrs Thom
as’s political activities.Theyare not in conflict with her husband.
But rather the opposite.nLexington
There is no conflict between Justice Clarence Thomas and his wife’s unhinged activism. That is the problem