Supreme Court justices were divided over 2020 election issues and ultimately declined to accept any of Donald Trump’s baseless claims, but one justice stood out for emphasizing ballot fraud in sympathy with those who refused to accept the results: Clarence Thomas.
The presidential election controversy is roiling the Supreme Court again, as the House select committee investigating the January 6, 2021, US Capitol attack continues to obtain communications between Thomas’ wife, Virginia “Ginni” Thomas, and Trump adherents who were trying to overturn Joe Biden’s victory and part of activities leading up to the January 6 rampage. The committee has now asked Ginni Thomas to speak about her efforts to reverse the election results.
Ginni Thomas, a longtime conservative activist, has previously stressed that her work is separate from her husband’s.
“The legal lane is my husband’s – I never much enjoyed reading briefs and judicial opinions anyway and am quite happy to stay out of that lane,” Ginni Thomas told The Free Beacon earlier this year. “We do not discuss cases until opinions are public – and even then, our discussions have always been very general and limited to public information.”
On the 2020 election, however, their actions ran on parallel tracks and the latest revelations further entangle the Supreme Court in politics.
The developments land at a remarkably grueling time for the justices. They are in the final weeks of the most important and fractious session in decades. They are barricaded behind an 8-foot fence and concrete blocks because of demonstrations and threats over a leaked draft of a decision that could overturn Roe v. Wade.
The justices appear on the cusp of reversing a half century of women’s rights embodied in the 1973 decision that made abortion legal nationwide. Chief Justice John Roberts launched an investigation the day after Politico published the early draft on May 2, but apparently the source of the leak has not been discovered in the past six weeks.
Tensions over the substance of the final cases of the session, including on Second Amendment rights and gun control, and the atmosphere of suspicion generated by the leak investigation, are escalating. (Some 18 cases await resolution before the end of the month; the next decisions will be released on Tuesday and Thursday – coincidentally the days of the next two House January 6 committee hearings.)
The new attention to potential conflicts of interest with Justice Thomas, a leader on the right wing positioned to have a significant impact on cases, only adds to the personal strains and the public reality of a politicized Supreme Court.
Justice Thomas has declined to comment on questions tied to his wife’s activities or potential conflicts of interest. For her part, Ginni Thomas told The Daily Caller on Thursday of the January 6 committee, “I can’t wait to clear up misconceptions. I look forward to talking to them.”
Ginni Thomas had earlier said that while she attended Trump’s rally on January 6, 2021, she did not march down to the Capitol with protesters. The assault by those who breached the Capitol left five people dead and hundreds injured.
The January 6 committee now has email correspondence between conservative lawyer John Eastman, a prominent Trump legal strategist in 2020 and a former law clerk to Justice Thomas, and Ginni Thomas. A source told CNN the emails were among messages provided to the committee after a federal judge ruled that Eastman’s correspondence was pertinent to the committee’s work.
In March, CNN learned that the committee had texts from Thomas to then-Trump White House chief of staff Mark Meadows showing Ginni Thomas pleading with him to fight to overturn the election results. In one November 10, 2020, text, she wrote, “Help This Great President stand firm, Mark!!! … You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
In the litigation that came to the Supreme Court during the 2020 election and its aftermath, Justice Thomas was receptive to Trump-backed theories.
Along with three other right-wing colleagues, Thomas expressed support for a doctrine that would allow a state legislature to award a state’s electors upon its own determinations even if it was in conflict to the will of the state’s popular vote. (That minority court view could have allowed GOP legislatures in swing states such as Pennsylvania and Wisconsin to reverse the will of voters.)
Thomas, in addition, wrote a February 2021 dissent, joined by no other justices, that emphasized election fraud and revealed some support for those challenging Joe Biden’s election victory. It was conspicuous for echoing critics of mail-in ballots.
“We are fortunate that many of the cases we have seen allege only improper rule changes, not fraud. But that observation provides only small comfort,” Thomas wrote in a Pennsylvania dispute over mail-in ballots, adding, “An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.”
(Election experts discredited claims related to fraud in 2020, and judges overwhelmingly rejected challenges to mail-in ballots in 2020.)
As he dissented from the court majority’s decision against intervening in the Pennsylvania dispute, Thomas added, “The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence.”
Thomas was also the only justice to publicly dissent last January when the high court allowed the National Archives to release to the January 6 committee thousands of documents from the Trump White House, over the former President’s attempt to assert executive privilege.
During the 2020 election litigation, Trump’s assertions were rejected in one lawsuit after another, including in a December 2020 case that came to the justices. That case was initiated by Republican Texas Attorney General Ken Paxton and attempted to reverse the election results in four states that had voted for Biden, Pennsylvania, Georgia, Michigan and Wisconsin.
Trump wrote on Twitter as the Supreme Court was about to act: “If the Supreme Court shows Great Wisdom and Courage, the American People will win perhaps the most important case in history and our Electoral Process will be respected again.”
But the Supreme Court on December 11 tossed the case.
The New York Times reported Wednesday night that Eastman, the Trump legal strategist who is a former Thomas law clerk, claimed later in December 2020 that there was a “heated fight” among Supreme Court justices over whether to hear arguments about efforts by Trump to reverse the 2020 election results.
In an exchange on December 24, 2020, Eastman apparently referred to infighting among the justices and wrote, “So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway.”
Asked about that email by CNN’s “New Day” on Thursday, Democratic Maryland Rep. Jamie Raskin, a member of the January 6 committee, said it “does suggest that there were at least some people maneuvering in right-wing legal circles to try to push the Supreme Court into action.”
Raskin added that Eastman “could have been lying about what he knew on the inside. On the other hand, perhaps he had some backchannel connection to the Supreme Court, and we want to ferret that out if that’s true.”