And tensions are running high inside too, as the court deals with the stunning leak of a comprehensive draft notice that would overturn Roe vs. Wadethe nearly 50-year-old abortion rights guarantee that has become the ultimate symbol of the political struggle over the composition of the court.
“The combination of challenges and threats facing the Court at any given time is unprecedented in recent history,” said Gregory G. Garre, who litigates regularly on the Supreme Court and served as solicitor general for President George W. Bush. “In this regard, the metal fence surrounding the pitch symbolizes the challenges it faces.”
David Pozen, a law professor at Columbia University, adds: “I can’t think of a time when there was such a confluence of signs of internal dissatisfaction and dysfunction, combined with external pressure on – and to indignation towards – the court.”
Every day seems to bring new controversy to the court, and on Thursday there were additional revelations about Virginia “Ginni” Thomas, the wife of the court’s most senior member, Judge Clarence Thomas.
Ginni Thomas corresponded with John Eastman, sources say in the January 6 House inquiry
The Washington Post reported that the House committee investigating the Jan. 6, 2021, attack on the Capitol was reviewing email correspondence between Ginni Thomas and attorney John Eastman, who played a key role in efforts to lobbying Vice President Mike Pence to block certification of Joe Biden’s Victory.
Eastman, a former Thomas clerk, was a supporter of taking election matters to the High Court in a last-ditch effort to overturn the results of President Donald Trump’s defeat. In a statement Thursday, he acknowledged corresponding with Ginni Thomas about the effort, but said there was nothing inappropriate.
“I can categorically confirm that at no time did I discuss with Ms. Thomas or Judge Thomas any matters that were outstanding or likely to come before the Court,” Eastman said in a statement. “We have never engaged in such discussions, we would not engage in such discussions and we have not done so in December 2020 or at any other time.”
Eastman wrote that he told another lawyer involved in the effort to overturn the election results that he understood there had been heated exchanges between the justices about whether to take up an election challenge. But Eastman said he was not relying on inside information about private court conferences, but on a limited-source report in conservative media. The report was roundly criticized.
Ginni Thomas told conservative media Thursday that she would comply with the committee’s request for information. “I look forward to dispelling misconceptions. I can’t wait to talk to them,” Thomas told the Daily Caller.
Ginni Thomas’ efforts – emailing former White House chief of staff Mark Meadows about legal challenges to the election results, pressuring members of the Arizona legislature to similar purposes – prompted her husband to repeatedly ask to recuse himself from any election-related matter that comes before the court.
Ginni Thomas apologizes to her husband’s Supreme Court clerks after Capitol riot fallout
The Supreme Court did not uphold any of the challenges filed by Trump’s lawyers and defenders. But Thomas alone dissented when the court denied Trump’s request to shield certain White House documents from the Jan. 6 committee.
Threats against judges have recently been highlighted. A California man accused of conspiring to assassinate Judge Brett M. Kavanaugh was indicted by a federal grand jury this week for attempting to kill a US judge. Nicholas Roske showed up at the judge’s home in Maryland on June 9 at around 1 a.m. with a gun, burglary tools and 37 rounds of ammunition, according to the indictment.
After texting her sister about her plans, she convinced Roske to call 911 and turn herself in, officials said. Roske faces a sentence of up to life in prison. Kavanaugh and his family were at home at the time of Roske’s planned attack.
Pozen notes that this is not the first time a judge has been threatened over the polarizing issue of abortion. Judge Harry Blackmun, who wrote the deer decision, regularly received death threats, Pozen said, and years later a bullet pierced the window of Blackmun’s Virginia apartment while he and his wife were home. No one was injured, and the FBI later determined it was likely a random event.
Even before the incident at Kavanaugh’s home, the Senate introduced legislation to ensure the safety of families of Supreme Court justices. Lawmakers were responding to concerns about the proliferation of protests outside judges’ homes after the draft notice leaked in early spring. This week, the House passed the bill and sent it to President Biden.
The outcry over the court comes just when it wants to project a unified, or at least collegiate, front. Instead, the court appears “deeply unstable,” in the words of Harvard law professor Laurence Tribe.
In the coming weeks he will hand down rulings in one of the most controversial terms in years. Following a conservative supermajority of six justices, he could take significant steps.
Liberals such as Tribe and ACLU legal director David Cole said the court created some of its own problems.
“He has a discretionary role, but in his first full term as a new court, he agreed to rule on abortion, carrying guns in public, climate change and state support for religion,” Cole said. “At least until now, caution has not been the watchword of the court. Instead, he opted to flex his new conservative muscle – and quite possibly deliver on Trump’s promise to overthrow Roe vs. Wade. This can only contribute to the appearance and reality of a politicized tribunal.
Conservatives respond that such concerns about the court’s legitimacy are simply code to protect liberal outcomes such as deer that the right has fought for years to overthrow.
As usual, the court said almost nothing about the controversies surrounding it. Chief Justice John G. Roberts Jr. denounced the leak of the abortion bill and said the court was investigating how it happened.
But the Supreme Court does not react as other institutions do. It is made up of nine people confirmed to their lifetime appointments by the Senate, and the other justices do not take orders from Roberts or anyone else.
“Chief Justice faces a huge challenge,” Garre said. “He is the nominal head of the court, but has little authority to act alone.” Garre was a clerk to Chief Justice William H. Rehnquist, who “used to refer to the Chief Justice’s job as a cat keeper.”
Some judges have spoken on their own in public appearances. Thomas and Judge Samuel A. Alito Jr., in speeches after the leak, denounced her and said she had damaged trust between the judges. They jumped at the opportunity to refer to their colleagues as respected friends who have learned to put aside their disagreements.
Clarence Thomas says Supreme Court leak eroded trust in institution
Thomas in particular seemed to yearn for the days before the current tribunal. “We actually trusted each other,” Thomas said during an appearance in Dallas. “We may have been a dysfunctional family, but we were a family.”
So it came as a bit of a surprise on Thursday when it was liberal Justice Sonia Sotomayor who put on a happy, optimistic face during an appearance before a convention of the American Constitution Society, a liberal legal group.
Sotomayor said the court had the opportunity to lead the way in “regaining public trust” in the institutions. In an interview with Tiffany Wright, a former clerk, she was not asked or referred to the leaked opinion or list of upcoming rulings that could 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 disagree with him more than any other judge,” she told the group, walking around 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”.
Although she criticized in an opinion last week the “restless and newly constituted court” eager for change, Sotomayor seemed determined to give the assembled liberals a hard time.
When asked why she wasn’t giving up hope, she replied, “I don’t think I have a choice, and 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.
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