Tuesday, November 15, 2022

Justice Thomas Goes Silent Again--At Least For One Election Denier's Case

by Michael C. Dorf

Scorning the tendency of some Republican appointees to succumb to what was once called the "Greenhouse effect,"--whereby they proved more moderate than expected or even liberal--Justice Clarence Thomas famously told his law clerks, "I ain't evolving." The quip captured two related sentiments: first, that Thomas was a committed conservative rather than a wobbly one or a closet liberal; and second, that he was unconcerned about what elite coastal liberals thought. The Greenhouse effect was after all, based on the hypothesis that the likes of Sandra Day O'Connor and Anthony Kennedy cared what Linda Greenhouse wrote about them in The New York Times.

Both sentiments expressed by Justice Thomas were well justified and have proven true over time. Today's essay will focus on the second point, harnessing evidence from an order the Court issued yesterday in Ward v. Thompson.

In that order, the Court, without opinion, denied an application for a stay and an injunction presented by Kelli Ward, the chair of the Arizona Republican Party, one-time fake elector for Donald Trump, and the object of a subpoena from the January 6 Committee for phone records. (The subpoena went to her mobile phone carrier, but she sought to block compliance.) For more background on the substance of the dispute, I recommend Amy Howe's explainer on SCOTUSblog.

I'm less interested in the merits of Ward's petition than in the fact that Justices Thomas and Alito chose to go on record stating that they "would grant the application for stay and injunction." I shall assume that they had some reason for thinking that Ward had made the sort of showing that warrants intervention by the Supreme Court. That is, I'll assume their dissent was purely based on a disagreement with their colleagues in the majority regarding the law and/or facts.

Still, Justice Thomas at least had to know that his participation in the case would raise eyebrows, especially in light of his decision to side with Ward, who pleaded her right against self-incrimination when she was called before the Committee. One need not be guilty to plead the Fifth, but one must have a reasonable fear that the evidence one would provide would tend to incriminate. (Evidence can tend to incriminate even if one is innocent.) And, to belabor a point that has by now no doubt occurred to nearly every reader, Justice Thomas's wife Virginia has also been the subject of investigation by the January 6 Committee regarding closely related events. Here's a summary from Howe at SCOTUSblog:

Thomas’ wife, Ginni Thomas, lobbied Arizona lawmakers in November 2020 to set aside the victory by then-President-elect Joe Biden and choose a “clean slate of Electors.” According to The Washington Post, which first reported on Thomas’ efforts, Ginni Thomas sent emails to two members of the Arizona legislature through an online platform “designed to make it easy to send prewritten form emails to multiple elected officials.”

Now, you might say something like this: Justice Thomas made a dubious decision not to recuse himself from all January 6-related cases, but, having made that decision, he gets to participate fully in all such cases, so this new order is hardly surprising.

To which I say: Okay, fair enough. He gets to participate--chiefly because you can't appeal a non-recusal, except to the non-recusing Justice. And perhaps there are points of law and/or fact on which he sometimes will disagree with his colleagues. In a case that is fully briefed and argued, one would then expect Justice Thomas to write or join a dissent (or, where he agrees with the Court, a majority or concurring opinion). In such a writing, he or the colleague he joins can fully explain their reasons. Readers might then disagree and even accuse Justice Thomas of voting how he did simply because of a bias created by his wife's real or apparent involvement, but such accusations would need to run through the stated reasons. In nearly every case, it's possible to point to flaws in the reasoning of this or that opinion and thus to suggest that the Justice or Justices who wrote or signed onto that reasoning had some ulterior motive, such as ideology or even partisanship. However, when the substance of a vote is unexplained and there is what many observers think is at least the appearance of impropriety, it is harder to dismiss the allegation of improper motive, because one can't point to the alternative ground given in the written explanation.

Furthermore, under the Court's procedures, a Justice who is out-voted in a case that comes to the Court in an emergency posture has essentially three options: (1) go on record as dissenting but give no reasons; (2) go on record as dissenting and write or join a written dissent explaining why; or (3) vote as you do internally but stay silent for the public. I'm suggesting here that options (2) and (3) would have drawn less criticism from observers questioning Justice Thomas's motives than option (1). Yet he chose option (1) anyway. Why?

The short answer, I want to suggest, is that Justice Thomas has evolved.

Or to be more precise, Justice Thomas has evolved again. As Garrett Epps observed in July 2015, at a point when Thomas had already been on the Court for nearly a quarter-century, by then Thomas was already speaking out, though still not yet speaking much from the bench. Professor Epps nonetheless predicted that while Thomas would continue to be interesting in his views, those views would be quirky and marginal, even among his fellow conservatives.

No longer. Having received reinforcements courtesy of Mitch McConnell and Donald Trump, Justice Thomas is now among the Court's most active questioners at oral arguments. And while his views are no less extreme than ever--as measured by reference to existing law--they are no longer quirky. He is frequently joined by Justice Alito, sometimes by Justice Gorsuch, and more than occasionally by four or all five of his fellow Republican appointees, enough to make his hard-edged reactionary views the law.

What I want to suggest here is that as Justice Thomas has watched the Court move towards him, he has grown more comfortable in wielding power, but he has managed to maintain the chip on his shoulder. He practices a judicial version of grievance politics. It's a kind of reverse-Greenhouse effect, in which causing readers of The New York Times and their ilk to criticize him for the appearance of impropriety or to criticize him for any other reason motivates Justice Thomas (and for that matter, Justice Alito, who also practices judicial grievance politics). For Justice Thomas (and Justice Alito), triggering the libs is a feature, not a bug.