That ship sailed when then-Senate Majority Leader Mitch McConnell held open a seat on the court for nearly a year of then-President Barack Obama’s term to give Republicans a chance to fill it. It sailed again when McConnell then rushed through the confirmation of Amy Coney Barrett weeks before an election. And it has sailed repeatedly thanks to the actions of the Thomases.
Most recently that’s come up on the issue of big tech, with Republicans feeling censored by the likes of Facebook, Twitter, and Google, despite reams of evidence that Republicans in fact receive kid-glove treatment from Facebook in particular.
Virginia Thomas has been sending out email blasts promoting a website and “influence network” about the “corporate tyranny” of big tech. Clarence Thomas wrote a concurring opinion in a case dealing with Donald Trump’s habit of blocking his critics on Twitter, railing against the control “of so much speech in the hands of a few private parties” and the “glaring concern” for free speech.
On the one hand, the fundraiser and organizer raking in contributions and whipping up opposition; on the other hand, the justice proclaiming on the law.
This is not a new story. Virginia Thomas started Liberty Central in 2009 with secret donations enabled by the Supreme Court’s Citizens United decision that same year. The very existence of those secret donations raised ethical questions, legal ethicists said at the time.
”It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” Deborah Rhode, director of the Stanford University Center on the Legal Profession, told The New York Times in 2010.
“The fact that we can’t find that out is the first problem,” she said. Not to mention, “how can the public form a judgment about propriety if it doesn’t have the basic underlying facts?”
Virginia Thomas and Liberty Central also fought fiercely against the Affordable Care Act, which has of course ended up in front of the Supreme Court repeatedly. But while Supreme Court justices are supposed to recuse themselves in cases of conflict of interest, they get to decide when to do so. No one can make them, which means Clarence Thomas can be just as unethical as he likes.
So, no, Justice Breyer, expanding the court—something with lots of historical precedent—or otherwise reforming it would not be what undermined trust by creating the perception of political motivation. You have only to look around you on the court to see what’s done that.