In a one-paragraph decision issued in January, the Supreme Court ruled that former president Donald Trump was required to turn over documents to the House committee investigating the January 6 insurrection. It was an unsurprising decision, described by commentators as “entirely consistent with existing law.” In a Supreme Court where a third of the members were appointed by Trump, only Clarence Thomas noted his dissent. Thomas would have permitted the Trump White House to shield its records from congressional scrutiny.
Initially, Thomas’s dissent was notable but not shocking. Thomas is a staunch conservative, frequently willing to go further to advance the right-wing agenda than many or all of his colleagues on the bench. But over the last several months, new reporting has suggested that Thomas’s dissent may not have stemmed strictly from a different interpretation of the relevant law.
Reporting has revealed that Thomas’s wife, far-right activist Ginni Thomas, was deeply involved in efforts to overturn the 2020 election results, going so far as to pressure at least lawmakers in Arizona to overturn the outcome in their state. Legal ethics experts from across the political spectrum agree that Thomas had no business ruling in a case so directly tied to his wife’s political activity — but he did so anyway.
As egregious as Justice Thomas’s refusal to recuse is, it is merely the latest display of the current Supreme Court’s illegitimacy. The creation of a 6-3 radically conservative supermajority on the Court is the result of a conservative legal movement determined to seize power at any cost.
In a 2016 presidential debate, Trump plainly stated that his Supreme Court nominees would vote to overturn Roe v. Wade. He said, “If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court.” Six years later we are on the precipice of that plan becoming a reality.
Each of those “two or perhaps three justices” appears likely to help overturn Roe, according to a majority draft opinion leaked last month. And each of those three justices occupies a seat on the bench because of bad-faith practices by conservatives.
After the death of Justice Antonin Scalia, Senate Republicans began an unprecedented blockade of Merrick Garland, then president Barak Obama’s nominee to the Supreme Court. The Republican majority refused to fulfill their duty to hold hearings and vote on a judicial nominee. Garland’s nomination was stalled for a stunning 293 days before expiring on January 3, 2017. Trump assumed office shortly after and within weeks nominated Neil Gorsuch to be the next Supreme Court justice.
A little over a year later, Justice Anthony Kennedy announced his retirement from the bench. Trump nominated Brett Kavanaugh as Kennedy’s reportedly hand-selected successor. Before Kavanaugh was confirmed, Christine Blasey Ford came forward alleging that he had sexually assaulted her when the two were in high school. Two additional women subsequently came forward with sexual misconduct allegations. Following Kavanaugh’s denials (and following what Blasey Ford’s lawyers called a “sham” FBI investigation), he was confirmed to a lifetime seat on the Supreme Court.