Overview:

Justice Thomas has refused to recuse himself from cases associated with Trump’s attempt to overthrow the results of the 2020 Presidential election.

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The most important function of any political institution is to maintain its legitimacy. If that legitimacy is lost, the institution itself can break down and become irrelevant. Losses in legitimacy can lead to a direct loss of authority as citizens no longer trust the institution to act in their best interest. New reports of text messages between Virginia “Ginni” Thomas (wife of Associate Supreme Court Justice Clarence Thomas) and President Trump’s then-White House Chief of Staff Mark Meadows present a serious legitimacy crisis for the Court.

The House Select Committee investigating the January 6th insurrection at the Capitol is reportedly in possession of these text messages in which she presses Meadows to illegally overturn the election in favor of Trump. “Release the Kraken and save us from the left taking America down,” reads one message.

“I can’t see Americans swallowing the obvious fraud. Just going with one more thing with no frickin consequences,” reads another. “We just cave to people wanting Biden to be anointed? Many of us can’t continue the GOP charade.”

To make matters worse, Justice Thomas was the court’s only dissent in Trump’s failed bid to prevent the House Select Committee from obtaining key Presidential records. 

The public has consistently approved of the Supreme Court more so than other American political institutions. But the court’s public approval is consistently falling over time, and could soon be as unpopular as Congress. According to Gallup, the court had the approval of nearly two-thirds of Americans at the turn of the 21st century. 20 years later, the court’s approval rating has fallen to 40%. The court is increasingly viewed as ideological and partisan rather than neutral arbiters of the law. 

Ginni Thomas’s text messages present a legitimacy crisis for the Supreme Court. Justice Thomas has refused to recuse himself from cases associated with January 6th and Trump’s attempt to overthrow the results of the 2020 Presidential election.

Justice Thomas has refused to recuse himself from cases associated with January 6th and Trump’s attempt to overthrow the results of the 2020 Presidential election. If justices or their families are working to help overthrow legitimate election results, how can the American public trust Supreme Court decisions to be nonpolitical? 

This crisis is likely to result in renewed calls to reform how the Supreme Court operates. The Hatch Act prevents civil servants and bureaucrats from donating to political parties or taking part in other forms of partisan politics. Calls for new legislation to curtail the political activity of Supreme Court Justices and their families may be forthcoming from those who fear for the Court’s institutional integrity. Even the perception of impropriety can have devastating effects on Court legitimacy. In the case of Thomas’ correspondence with Trump’s allies in their attempt to overthrow the election results, the perception is entirely warranted. 

Despite this, it is highly unlikely that either of the Thomases will face legal or political consequences. The polarization and gridlock of our current system prevent bad actors from being punished. This creates a vicious cycle where political institutions lose even more legitimacy because the public loses faith in their ability to function as they were properly intended.

The result could be a public which calls for their states, or even the federal government, to ignore the rulings of the Supreme Court.

If this sounds far-fetched, it isn’t. The Supreme Court has no enforcement mechanism and relies entirely on the goodwill of state and federal actors to respect their rulings. If the Court continues down its current path, its future may be one with little functional political power. 

Marcus Johnson

Marcus Johnson is a political commentator and a political science Ph.D. candidate at American University. His primary research focus is the impact of political institutions on the racial wealth gap.