It’s hard to imagine an uglier scenario for the justices of the Supreme Court as they move toward the conclusion of their remarkably controversial term.
And tensions are at a reported high inside as well, as the court deals with the stunning leak of a full draft opinion that would overturn Roe v. Wade, the nearly 50-year-old guarantee of abortion rights that has become the ultimate symbol of the political fight over the court’s membership.
“The combination of challenges and threats that the court is dealing with at one time is unprecedented in recent history,” said Gregory G. Garre, who argues regularly at the Supreme Court and was President George W. Bush’s solicitor general. “In that respect, the metal fencing surrounding the court symbolizes the challenges it is facing.”
Adds Columbia University law professor David Pozen: “I can’t think of a moment previously when there’s been such a confluence of signs of internal dissatisfaction and dysfunction, combined with external pressure on — and outrage toward — the court.”
Each day seems to bring a new controversy for the court, and Thursday’s was additional revelations about Virginia “Ginni” Thomas, the wife of the court’s longest-serving member, Justice Clarence Thomas.
The Washington Post reported that the House committee investigating the Jan. 6, 2021, attack on the Capitol is examining email correspondence between Ginni Thomas and lawyer John Eastman, who played a key role in efforts to pressure Vice President Mike Pence to block the certification of Joe Biden’s victory.
Eastman, a former Thomas clerk, was an advocate for getting election issues before the high court in a last-ditch effort to flip the results of President Donald Trump’s defeat. In a statement Thursday, he acknowledged corresponding with Ginni Thomas on the effort but said there was nothing improper.
“I can categorically confirm that at no time did I discuss with Mrs. Thomas or Justice Thomas any matters pending or likely to come before the Court,” Eastman said in a statement. “We have never engaged in such discussions, would not engage in such discussions, and did not do so in December 2020 or anytime else.”
Eastman wrote he had told another lawyer involved in the effort to overturn the election results that he understood there had been heated exchanges among the justices about whether to take up an election challenge. But Eastman said he was not relying on inside information about the court’s private conferences but a thinly sourced report in conservative media. The report has been roundly criticized.
Ginni Thomas indicated to a conservative media outlet Thursday she would comply with the committee’s request for information. “I can’t wait to clear up misconceptions. I look forward to talking to them,” Thomas told the Daily Caller.
Ginni Thomas’s efforts — emailing former White House chief of staff Mark Meadows about legal challenges to the election results, lobbying members of the Arizona legislature to similar ends — have prompted repeated calls for her husband to recuse himself from any election-related case that comes before the court.
The Supreme Court did not entertain any of the challenges filed by Trump’s lawyers and advocates. But Thomas alone dissented when the court turned down Trump’s request to shield some White House documents from the Jan. 6 committee.
Threats to the justices have recently been put into sharp relief. A California man accused of plotting to assassinate Justice Brett M. Kavanaugh was indicted by a federal grand jury this week on one count of attempting to kill a U.S. judge. Nicholas Roske showed up at the justice’s Maryland home June 9 around 1 a.m. with a gun, burglary tools and 37 rounds of ammunition, according to the indictment.
After texting with his sister about his plans, she convinced Roske to call 911 and surrender, officials said. Roske faces a potential sentence of up to life in prison. Kavanaugh and his family were at home at the time of Roske’s planned attack.
Pozen notes it is not the first time a justice has been threatened over the polarizing issue of abortion. Justice Harry Blackmun, who wrote the Roe decision, regularly received death threats, Pozen said, and years later a bullet pierced the window of Blackmun’s Virginia apartment when he and his wife were at home. No one was injured and the FBI later determined it was likely a random occurrence.
Even before the incident at Kavanaugh’s home, the Senate introduced legislation to ensure security for the families of Supreme Court justices. Lawmakers were responding to concerns about the proliferation of protests outside the homes of justices after the leak of the draft opinion earlier this spring. This week, the House passed the bill and sent it on to President Biden.
The outcry over the court comes at the precise moment it wants to project a unified, or at least collegial, front. Instead, the court appears “deeply unsettled,” in the words of Harvard law professor Laurence Tribe.
In the coming weeks, it will be handing down decisions in one of the most controversial terms in years. As a result of a conservative supermajority of six justices, it could make major moves.
Liberals such as Tribe and ACLU legal director David Cole said that the court has made some of its own problems.
“It has a discretionary docket, yet in its first complete term as a new court it agreed to rule on abortion, carrying guns in public, climate change, and state support of religion,” Cole said. “At least thus far, caution has not been the court’s watchword. It has instead chosen to flex its newfound conservative muscle — and very possibly to make good on Trump’s promise to overturn Roe v. Wade. That can only contribute to the appearance and reality of a politicized court.”
Conservatives reply that such worries about the court’s legitimacy are simply code for protecting liberal outcomes such as Roe that the right has battled for years to overturn.
As is its custom, the court has said almost nothing about the controversies that surround it. Chief Justice John G. Roberts Jr. denounced the leak of the draft abortion opinion, and said the court was conducting an investigation of how it happened.
But the Supreme Court does not respond the way other institutions do. It is composed of nine individuals confirmed to their lifetime appointments by the Senate, and the other justices do not take orders from Roberts or anyone else.
“The chief justice faces an enormous challenge,” Garre said. “He is the nominal head of the court, but has little authority to act on his own.” Garre was a clerk to Chief Justice William H. Rehnquist, who “used to refer to the job of the chief justice as herding cats.”
Some justices have spoken out on their own in public appearances. Thomas and Justice Samuel A. Alito Jr., in speeches after the leak, denounced it and indicated it had taken its toll on trust among the justices. They skipped the chance to speak about their colleagues as respected friends who have learned to put their disagreements aside.
Thomas in particular seemed to long for the days before the current court. “We actually trusted” each other, Thomas said at an appearance in Dallas. “We might have been a dysfunctional family, but we were a family.”
So it was a bit of surprise Thursday when it was liberal Justice Sonia Sotomayor who put on a cheerful, optimistic face at an appearance before a convention of the American Constitution Society, a liberal legal group.
Sotomayor said the court had the chance to lead the way to “regain public confidence” in institutions. In an interview with Tiffany Wright, a former clerk, she was not asked about nor did she refer to the leaked opinion or the coming slate of decisions likely to go against her and the two other liberals on the court.
She went out of her way to praise her relationship with Thomas. “I suspect I have disagreed with him more than any other justice,” she told the group, wandering among the attendees and answering questions. But she said he was a man who “cares deeply about the court as an institution, about the people who work there.”
Even though she criticized in an opinion last week the “restless and newly constituted court” eager for change, Sotomayor seemed intent on bucking up the assembled liberals.
Asked why she doesn’t lose hope, she said, “I don’t think I have a choice, neither do you.”
When she loses, Sotomayor said, she feels sorry for herself and then is ready for another round. “Let’s fight,” she said.