Justice Thomas Should Resign or be Impeached

Extreme Ethical Breaches, Ruling to Benefit His Wife, Deliberately Misinterpreting the Second Amendment, and His Far Right Jurisprudence to the Right of Conservatives

Justice Thomas was nominated to the Court by President George H.W. Bush to take the seat of Justice Marshall, an eminent lawyer and jurist who lead the fight for racial equality culminating with the unanimous decision in Brown v. Board of Education in 1954. Prior to his nomination, Justice Thomas was Director of the EEOC charged with enforcing civil rights laws in employment, but he is best known in that job for sexually harassing his Deputy, now Professor Anita Hill, with pornographic literature and Coke bottles. Such a contrast between Thomas and Marshall. Bush gave us Thomas and Johnson gave us Marshall, there is the distinction between Republicans and Democrats.

Now Thomas is facing ethical inquiries regarding disclosure by Pro Publica of his 25 years of receiving enormous largesse from billionaire and GOP Mega Donor Harlan Crow in the form of trips to Asia on Crow’s private jet, vacations on Crow properties around the world, travel to far distant places on Crow’s plane and lodging and meals at Crow residences. One such Crow-paid trip was valued by Pro Publica at $500,000.

Though Thomas was legally obligated throughout those 25 years to report on financial disclosure forms his gifts and benefits awarded to him, Thomas has not reported any of the 25 years of largesse from Crow. This textualists on the Supreme Court claims the exemption for “personal hospitality” to be broad enough to include his many trips on Crow’s private jets and lengthy stays at Crow’s properties in the Adirondacks and around the world. Thomas says he consulted others on the meaning of “personal; hospitality” but without naming names he claims he received assurances that his Crow-paid round the world adventures were mere “personal hospitality” similar when people in D.C. would invite the eminent Justice Marshall over for afternoon tea in Georgetown.

Justice Thomas released a statement claiming that he never discussed pending cases with Crow or others, but the is a painting in Crow’s Adirondack home showing Thomas holding a cigar and talking with Leonard Leo, then the President of the Federalist Society, a group that works to promote a right-wing views on many legal issues and which assisted in putting conservative Justices on the Supreme Court such as Gorsuch, Kavanaugh and Barrett. For Thomas to claim he never discussed legal issues with Leo, Crow and right-wing lawyers strains credulity and is most likely a complete lie.

For other examples of Justice Thomas’ statements defining his reputation for truth telling and believability one need look no farther than his sworn testimony at his confirmation hearing when asked about his views on abortion he said he had actually never thought about it while a student at Yale Law School or at any time since while serving as an aide to Senator Danforth, while working at Monsanto or as head of the EEOC. Abortion and its regulation by Government never crossed his mind while he was a law student at Yale Law School, he said, from which he graduated in 1974 and he was a second year Yale law student when Roe v. Wade was decided in 1973. Does anyone really believe his sworn testimony that he never thought about or discussed Roe v. Wade while at Yale law school?

But once on the Supreme Court Justice Thomas became a fervent opponent of abortion and ultimately joined Justice Alito as the two staunchest abortion opponents, and he gladly joined in Alito’s Opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and never considering the legal argument that severe restrictions on abortion violate women’s rights under the Thirteenth Amendment to be free of “involuntary servitude” where government forces a woman to go through labor and deliver a baby when she wanted an earlier abortion.

While the Court was considering the Dobbs case, an unprecedented event happened as someone gave a copy of the draft Alito opinion in Dobbs to Politico which promptly published it. CJ Roberts had the Marshall of the Court conduct an investigation as to who was the leaker, but there has not been any public report on the results of that investigation.

I have speculated previously in a Substack post of Harold’s Newsletter that Justice Thomas, the fervent opponent of abortion rights, was the leaker of the draft Alito Opinion in Dobbs, and he gave it to his politically active wife Ginni who gave it to Politico for publication. See: Harold’s Newsletter, January 19, 2022, on Substack. Thomas had the motive, the opportunity, and the fervent desire to overturn Roe v. Wade, and he knew he would be free from repercussions from being the leaker in light of the light- handed leadership of CJ Roberts. I sent my January 19, 2022 Newsletter to CJ Roberts, and I will bet he agrees with my conclusions and analysis.

There are two major affirmative action cases pending before the Court, and it is Widely assumed that the Court will limit or bar affirmative action in college admissions. Justice Thomas has spoken and written against affirmative action policies in various government programs. But Thomas personally benefited from affirmative action in getting admitted at Yale Law School. So, the beneficiary of affirmative action at Yale Law is now a strong opponent of any affirmative action policies in any setting as he says affirmative action degrades Blacks and ultimately reduces their opportunities. This from the former Chairman of the Equal Employment Opportunity Commission.

Then there is the sorry case of Justice Thomas on gun regulation. Basically, he thinks there should be none despite the nearly weekly mass shootings of school children, shoppers, parade watchers, and music venue listeners. Thomas inflicted his distorted view of the Second Amendment, following the path first set by Justice Scalia, that great distorter of Constitutional provisions, on all Americans in his decision in New York Rifle Association v. Bruen. There Justice Thomas did a pseudo review of history of open carry and gun restrictions. He adopted a principle that some history was more relevant than others so that he could ignore history that was not consistent with his views. He then advanced Scalia’s misinterpretation of the Second Amendment by holding that everyone, everywhere had a Constitutional right to carry any type of weapon including handguns, AR-15s, rifles and shotguns, AK-47s and others and they could do so without a permit. Guns for everyone, Justice Thomas held.

Justice Thomas’ decision enunciating the gun law of the United States was contrary to interpretation of the Second Amendment in earlier cases, but he and the new conservative-radical majority ignore precedent when useful to advance their personal positions. Chief Justice Burger had earlier stated a very different interpretation of the Second Amendment where Burger said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” “The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. … The Framers clearly intended to secure the right to bear arms essentially for military purposes.” The Second Amendment was designed to provide for arming militias, entities of the state, not individuals.

Data released recently shows the tremendous increase in gun violence and mass shootings since the assault weapon ban expired, so Justice Thomas’ Opinion in Bruen of an unlimited right to carry all guns, rifles and other weapons will only promote and aid these mass shootings of innocent people at rates far in excess of such shootings in other countries.

Once on the Court Thomas departed from his trash talk with Professor Hill and instead he never asked a question at oral argument for over twenty-five years. He only broke his Silent Clarence routine when Covid struck and the Court held oral arguments via Zoom or other device. Then Chief Justice Roberts would turn to Justice Thomas as the most senior Justice and ask him if he had any questions, so now Thomas had to act like he was participating by asking questions when the Chief said it was his turn. Thomas could not just sit there like a dummy so he began to ask oral argument questions when called upon to do so.

Then there is the case in the Court where Trump sought to block release of emails and texts sent to Trump’s Chief of Staff about and before the January 6 Insurrection, and the Court denied Trump’s attempt to block release. But Justice Thomas, knowing that his wife Ginni had sent some of those emails and texts seeking to keep Trump in office despite the election of Biden, wrote a dissent from the other eight Justices and said that the emails and texts should not be turned over to the January 6 Committee. This was a clear conflict of interest of the worse sort where Thomas sought to prohibit release of his wife’s statements to the Chief of Staff. Thomas should have recused himself in the case and not participated in it knowing his wife Ginni was the author of some of the emails and texts that the January 6 Committee sought. This was an egregious breach of statutes prohibiting Justices from sitting on cases where there is a clear conflict of interest.

Chief Justice Roberts has done nothing to reign in Justice Thomas or rebuke him for his conflict of interest decisions. Roberts probably knows that Thomas was the leaker of the draft Alito opinion in Dobbs, but CJ Roberts is apparently protecting Thomas by not disclosing the full results of the investigation and not requiring investigators to interview all the Justices. Roberts should have called in the FBI to investigate an unauthorized leak of government documents, but he didn’t so he could protect the probable leaker: Justice Thomas.

Justice Thomas has been acting as though he were above the law. The disclosure of his twenty-five year receipt of largesse from a Billionaire that Thomas never reported in financial disclosures is only the latest example of Thomas ignoring law and ethical obligations. He does not deserve to continue participating as an Associate Justice of the Supreme Court, and if he does not resign he should be impeached by the Congress.