As shelves of thick law books in any experienced attorney or judge’s office reflect, administration of the law is no mere endeavor, even with the U.S. Constitution as a guiding light. For judges and justices, there are legal precedents to acknowledge and consider, even as each new case presents twists that beg discriminating judgment faithful to the law yet cognizant of extenuating circumstances. And for all those thundering claims of constitutional originalism and textualism by some jurists who walk among us — supposed adherence to the letter of the law and long-dead Founders’ intent — new times, new dynamics and new laws demand certain leaps of interpretation beyond anything the Founders might have imagined.
With the steady deterioration of our legislative and executive branches into political theater of the absurd centered on everything from suppressing everyday voting rights and hindering free and fair elections to encouraging outright sedition if elections don’t go the way some of us prefer, survival of the United States may well hinge not only on the legitimacy of a constitutionally faithful federal judiciary but on the very character of the individuals representing it on the bench.
The week of March 20, 2022, should have given Central Texans plenty to think about. Many surely watched some of the U.S. Senate Judiciary Committee hearings during which white, richly entitled Republican senators interrogated, lectured and sought to humiliate the first African American woman nominated to the Supreme Court of the United States.
Yet friends, family and supporters of Central Texas winemaker, Air Force veteran and January 6 defendant Christopher Grider should have had mixed feelings about the sorry spectacle: Supreme Court nominee and former District Judge Ketanji Brown Jackson, 51, of Washington, D.C. — criticized by Republican senators for her leniency as a jurist — had after all reversed the detention order of U.S. Magistrate Susan Hightower of Austin, who had been quite content to let Grider, white and co-owner of Kissing Tree Vineyards in Bruceville-Eddy, languish in the federal custody in which he found himself after surrendering to the FBI on Jan. 21, 2021. By contrast, Judge Brown released Grider, then 39, on an unsecured bond, required him to wear a GPS ankle monitor, gave him a curfew and ordered him to report to the U.S. Pretrial Services Office in Waco once a week — minor inconveniences given the crimes for which he has been charged and the prospect of wasting away behind bars till trial.
“We are very pleased with the judge’s decision,” Grider attorney Brent Mayr told the Waco Tribune-Herald upon Jackson’s Feb. 22, 2021, order. “And more importantly, that she followed the law. As we have always maintained, Christopher Grider did not go to Washington, D.C., to cause any harm or do any violence. We are thankful that the judge reconsidered that he is not a danger to the community and can remain free while awaiting trial on this case.”
Magistrate Hightower, who had refused to reconsider her detention order, determined earlier “there is extremely strong evidence that Mr. Grider participated at the forefront in the events that led to the fatal shooting” of Air Force veteran, QAnon disciple and combative Trump champion Ashli Babbitt outside the Speaker’s Lobby leading to the U.S. House chamber. Hightower said “no condition or combination of conditions of release would reasonably ensure the safety of the community.” In short, Judge Ketanji Brown Jackson gave Trump supporter Christopher Grider more consideration than Trump apologists on the Senate Judiciary Committee gave her.
No rules, no laws
Granted, this legal distinction is probably lost on many of Grider’s neighbors, some still flying badly tattered Trump flags on their rural spreads to show their patriotic sentiments and whose allegiance to country and Constitution is one of heart-pumping emotion without troublesome nuances of fact and context. That said, Grider has dutifully kept a low profile since his release by Judge Jackson. His name isn’t raised when his family-owned winery advertises weekend events. The week of March 20 it touted country music by Sul Ross and the winery chef’s “famous Seared Sous Vide Steaks and Lobster Risotto!”
Also left with lots to think about the week of March 20 were Central Texans who showed reverence for U.S. Supreme Court Justice Clarence Thomas upon his participation in a forum on his life and career held at McLennan Community College on Sept. 7, 2017 — a real coup in public attractions. At the very time Judge Jackson was undergoing withering questioning and mansplaining galore before the Senate Judiciary Committee last month, multiple sources were reporting that the House Select Committee investigating the January 6 riot at the U.S. Capitol was going through explosive text messages by Justice Thomas’ wife, Ginni.
A longtime right-wing activist, lobbyist and spreader of conspiracy theories, the justice’s wife had repeatedly urged Trump Chief of Staff Mark Meadows to assist in pitched efforts to overturn the 2020 presidential election during a tumultuous post-election period when Trump and allies vowed to go to the Supreme Court to do just that. In one of her crazed, “release-the-Kraken” text messages to Meadows after the election, she echoed the notion that, in the bid to keep Donald Trump in power and prevent the nation’s downfall, “the most important thing you can realize right now is that there are no rules in war.” Some January 6 insurrectionists seeking to derail constitutionally required certification of the election results offered similar rallying cries.
“No rules” is just another way of saying “no laws,” which means anarchy and the death of the U.S. Constitution and the law and order the Framers sought to impose. Ginni Thomas’ rhetoric would have repulsed Hamilton, Madison and George Washington, judging from their writings. For those remembering Justice Thomas’ pronouncements in Waco a few years ago, the contrast couldn’t be more jarring, especially considering the canard Thomas and so many conservative “textualists” claim to have about the law. “They say you’re a textualist if you read the words of the Constitution,” Thomas told those in the MCC gym. “So why would you have the thing written if it wasn’t supposed to be read?”
The justice then joked in his benign, grandfatherly way: “For example, if you go out here and there’s a sign that says ‘stop’ and you read that, you’re a textualist. If you do what the word ‘stop’ meant originally, you’re an originalist. Now if you want to reinterpret ‘stop’ to mean ‘stop whenever I feel like it,’ then you’re probably a progressive.” The crowd in the gym exploded in laughter, then applause.
Shortly before Justice Thomas’ visit to Waco — one arranged by former federal judge and legal scholar Ken Starr — a friend asked if I would be attending the evening celebrating Thomas. I had decided against it. Besides being busy as a newspaperman editing and publishing the perspectives, thoughts and complaints of fellow citizens on more issues than the high court takes up each year, I found Thomas lacking as a jurist, a figure paralyzed by rigid ideological fixations and infamous for declining to question attorneys arguing important constitutional cases. He once went 10 years without pressing attorneys with a question. In doing so, he neither confirmed suspicions he might have had nor risked relevant epiphanies that might have enlightened the entire court and nation.
“Well,” my friend said, excusing the justice’s behavior, “it’s no wonder after all he went through.” Point taken. Thomas in 1991 went through a trial by fire (or what he angrily described as a “high-tech lynching”) in Senate confirmation hearings, similar though hardly approaching those experienced in 2018 by then-Judge Brett Kavanaugh and last month by Judge Ketanji Brown Jackson. One wonders if this humiliating gauntlet contributed to what some suggest is a disappointing legacy by Justice Thomas on the high court, at least alongside others such as Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsburg. Distinction on the court might have helped eclipse the sexual harassment claims marring Thomas’ confirmation process.
Yet Thomas’ unwillingness to recuse himself from cases involving the robust activism of his wife and her associates — up to and including a 2022 case involving the January 6 House committee’s attempts to access Trump White House records from the National Archives — only bolsters the growing perception that rabid partisanship has poisoned the nation’s highest court. In a national survey by Pew Research Center this past January, 54 percent of U.S. adults surveyed said they had a favorable opinion of the Supreme Court while 44 percent had an unfavorable view. Over the past three years, the share of adults with a favorable view of the high court has declined 15 percentage points. For the record, the high court by an 8-1 decision dismissed the former president’s feeble argument against the House committee accessing his records with only Thomas dissenting. Thomas declined to explain his dissent.
My exchanges with fellow citizens over the years suggest many Americans remain unfamiliar with how the federal judiciary is structured or the importance of legal precedents as a brake against court-inspired chaos. Worse, many of us show concern for conflicts of interest by public officials only when it’s our ox getting gored in the process. During a morning walk last week, one of my Trump-supporting neighbors said he saw no problem with the justice’s wife spouting opinions, no matter how radical — that he and his own wife feel very differently in some of their politics — and that in any case he was far more concerned that Justice Thomas, 73, recover from whatever malady landed him in the hospital about the time his well-connected wife’s QAnon-infested texts about the election being “the greatest Heist of our History” came to light.
Another neighbor, an attorney, better understood the real heart of the issue: The court quandary has less to do with Ginni Thomas’ right to her views and more to do with the appearance of judicial impropriety that is always supposed to concern judges and justices. Yet my friend was more rankled at University of Pennsylvania swimmer Lia Thomas’ becoming the first transgender athlete to win an NCAA Division I championship in any sport when she won the 500-yard freestyle race, prompting outrage from citizens such as my neighbor who believe transgender women should not be able to compete in NCAA events for women. Our neighborhood debate probably represented a microcosm of what’s being discussed across the land.
The same day as our discussion, U.S. Sen. John Cornyn — a former state attorney general and state supreme court justice I once hoped would rally Republicans back to principled conservatism during the Trump era rather than play to conspiracy theories and cultural distractions — dismissed cries for Justice Thomas to recuse himself from cases involving his wife’s political activism. The senator argued that “we ought to leave family members out of all this. It’s ridiculous to attack members of a public figure’s family.” A few days later he tweeted: “Judge Ketanji Brown Jackson has an impressive resume, but I have serious concerns about her ability to separate her personal beliefs from her role on the bench.” Right.
Meanwhile, the combustible texts by the 65-year-old spouse of a Supreme Court justice supporting overthrow of the 2020 presidential election — texts that even stalwart conservative sentinel George Will concedes reveal Ginni Thomas to be as “mad as a hatter” — have spurred legislation that would require the Judicial Conference of the United States to forge a code of conduct applying to justices of the Supreme Court just as standards already apply to other federal judges. It’s legislation likely to go nowhere, given it might be perceived as casting a shadow of dishonor on Justice Thomas’ supposed legacy, something Republicans want to protect as if “originalism” itself. As Democratic House Speaker Nancy Pelosi reportedly remarked in jest behind closed doors, “It’s up to an individual justice to decide to recuse himself if his wife is participating in a coup.”
In other words, short-term partisan motives will prevail over long-term safeguards bolstering the integrity of our constitutional governance and the men and women we trust to protect, preserve and, yes, actually live it. Tragically, legitimacy of the highest court in the land absolutely demands the latter course.
Bill Whitaker retired as Waco Tribune-Herald opinion editor in 2020 after a career of nearly 45 years as a reporter, editor and columnist in Texas journalism.
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