Two minor but telling developments this week provide dismal reminders that the U.S. Supreme Court is mired in a crisis of legitimacy because of what certainly looks like overt partisanship by its conservative majority. Chief Justice John Roberts should add these to the multiple other examples of broken trust by his fellow jurists the next time he publicly laments the court’s loss of standing, as he recently did.
On Monday, Justice Clarence Thomas issued a temporary reprieve to Sen. Lindsey Graham, R-S.C., from having to testify to a grand jury about efforts by Donald Trump’s allies to manipulate the 2020 presidential election results in Georgia. Graham’s appeal went to Thomas because he’s the justice over that regional jurisdiction. His order putting Graham's testimony on hold is a routine way of giving the full court time to review the issue.
But as with anything regarding that election, having Thomas involved in any way automatically looks suspect because of his wife, right-wing activist Ginni Thomas. In the weeks leading up to the Jan. 6, 2021, Capitol insurrection, Ginni Thomas flooded Trump’s inner circle with unhinged texts calling Joe Biden’s election a “coup,” suggesting the Biden “crime family” should face “military tribunals for sedition,” and generally encouraging resistance to accepting the election outcome. In what universe is it OK for Justice Thomas not to recuse himself from anything Jan. 6-related when this is the kind of pillow talk he goes home to at night?
Meanwhile, The New York Times revealed that Justice Samuel Alito privately assured the late Sen. Edward Kennedy during his 2005 confirmation process that he respected the precedent of Roe v. Wade and had no intention of ever touching it — a vow Alito summarily discarded this year in leading the charge to overturn Roe.
“I am a believer in precedents,” Alito told Kennedy, the Massachusetts Democrat recorded in his diary, which is being revealed in a new book. “People would find I adhere to that. … I recognize there is a right to privacy. I think it’s settled.”
That mendacity is hardly a surprise, nor is Alito alone in it. All five conservative justices who voted in June to overturn Roe (Roberts concurred, but stopped short of endorsing full reversal) have at various times waxed on about the sanctity of precedent generally — and have, to varying degrees, offered assurance they weren’t going to go out of their way to flip Roe as soon as they had the votes to do it. Which, of course, is exactly what they did.
“I don't understand the connection between (Supreme Court) opinions that people disagree with and the legitimacy of the Court," Roberts told an interviewer in September, expressing frustration at Americans’ criticism. As we noted then, his frustration is misplaced. These latest developments further illustrate why.
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