Why is Justice Thomas telling us he's above the law?

19 April 2023

You know I’ve been reading up on the eldest member of the rightwing supermajority of the United States Supreme Court. Something I have noticed, not for its presence but for its absence, is that Clarence Thomas keeps saying things that, if it were anyone but a justice saying them, would cause reasonable people to wonder: why is he telling us he’s above the law?

Allow me to remind you of the stakes, by which I mean the stakes for the Republicans. They have succeeded in tipping the balance of power in this country so that redhat authoritarians are emboldened to mount aggressive campaigns to return their states to their natural state of authoritarianism.

That gambit has always depended on respectable people – ie, respectable white people – continuing to believe that one-ninth of the Supreme Court knows what he’s doing. On the strength of that competence, they continue trusting the court. On the strength of that trust, authoritarians keep pushing their respective states to the edge of respectable American politics.

This is why the Stern Fathers of the Party insisted that Justice Thomas had no connection whatsoever to the J6 insurrection despite his spouse, Ginni Thomas, being intimately entangled in its treachery. Sure, she had urged Donald Trump’s chief aide to “stop the steal.” Sure, she had ingratiated herself seemingly to influence election officials in swing states. But that had nothing to do with her husband, they said. He knows what he’s doing!

If there were anything to worry about, they said, Justice Thomas would have recused himself from Supreme Court cases related to Trump’s failed coup d’etat. But, they told us, there was never anything to worry about!

Trust him!

Ginni Thomas, for her part, reinforced that view. Her activism had nothing to do with her husband’s jurisprudence and his jurisprudence had nothing to do with her activism. “I can guarantee that my husband has never spoken with me about pending cases,” she said. “It’s an iron-clad rule in our home.”

She went on to say that, “it is laughable for anyone who knows my husband to think I could influence his jurisprudence – the man is independent and stubborn, with strong character traits of independence and integrity.”

Trust him!

Yet for all his “independence and integrity,” Justice Thomas could not, for the life of him, figure out normal instructions on normal federal tax forms that require normal federal tax filers to disclose the earnings of spouses. For four years, despite Ginni Thomas receiving nearly $700,000 in income from the Heritage Foundation, Justice Thomas said that she had no income. He said oops, later, “due to a misunderstanding of the filing instructions.”

That isn’t the only thing he didn’t understand.

He didn’t understand that hundreds of thousands of dollars’ worth of vacations should have been reported, according to federal disclosure law. (He later said that, in effect, don’t blame me for believing “colleagues and others in the judiciary” who said “personal hospitality from close personal friends, who did not have business before the court, was not reportable.”)

He didn’t understand that gifts of such value and magnitude are not “personal hospitality,” as the term is normally understood. He didn’t understand that the Texas real estate magnate who paid for them is not the same as a normal person who invites “close personal friends” over for the weekend. (He didn’t understand that elevating said billionaire from a “close personal friend” to “our dearest friends” makes that no closer to true.)

He didn’t understand the requirement by federal disclosure law to report the sale of three family properties to Harlan Crow, the billionaire. (He didn’t understand how weird it is for Crow to be his mom’s landlord.) He didn’t understand that a company closely held by his wife’s family kept providing hundreds of thousands in income despite the company ceasing to exist.

That’s a lot for a Supreme Court justice not to understand.

That’s so much not to understand, in fact, that one can reasonably wonder whether Justice Thomas recognizes conflicts of interest when they are presented to him – as when his wife raises hundreds of thousands from anonymous donors in support of cases brought before the court that will determine how much power redhat authoritarians will have in campaigns to return their respective states to their natural states of authoritarianism.

There’s so much he doesn’t understand that, when Ginni Thomas says, “I can guarantee that my husband has never spoken with me about pending cases,” one can be forgiven for thinking she’s full of shit. What’s laughable isn’t that “anyone who knows my husband” might be thinking that “I could influence his jurisprudence.” What’s laughable is thinking she doesn’t.

Justice Thomas has told us, and will keep telling us, about things he didn’t and doesn’t understand. He didn’t understand disclosure forms. He didn’t understand tax forms. There’s likely more where those came from.

By telling us these things, Justice Thomas is telling us something else, chiefly that a man who didn’t and doesn’t understand these things has no business on the Supreme Court, an institution that tells us what the law is.

He has no business in an institution that tells the rest of us what the law is, because a prerequisite for telling the rest of us what the law is is understanding federal disclosure forms and federal tax forms.

He’s telling us that he didn’t and doesn’t understand for three reasons. One, because Justice Thomas can’t be held responsible for doing things he didn’t understand. Two, because no one can hold him responsible for doing things he didn’t understand. Three, that ignorance of the law is never a defense against legal consequences – except when you’re a supreme court justice.

In that case, you’re above the law.

One of the telltale signs of corruption among high officials is when they come right out and say hell yeah, I’m corrupt. Whaddaya gonna do about it? In the case of Justice Thomas and Ginni Thomas, no one can do anything.

There’s no downside to telling the truth.

So he’s telling us.

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