April 24, 2023 | Reading Time: 4 minutes
Could the Supreme Court cover up its corruption by saving access to the abortion pill?
We should keep on keeping the democratic faith.
The last time I spoke of the eldest member of the rightwing supermajority of the United States Supreme Court, I probably failed to lift your confidence in democracy.
I said that Justice Clarence Thomas is telling us he’s above the law, that there’s nothing we can do about it, and that by telling us there’s nothing we can do about it, he’s telling us who he is: a terrible human being who will tell us what the law is until the day he dies.
While I probably failed to lift your confidence, I didn’t intend to kneecap it. We should keep on keeping the democratic faith. Democracy is complex. Liberal democracy is more complex. Causes have their effects. Decisions often have unintended consequences.
One of these unintended consequences, and I’m indulging here in a bit of speculation, could be this: that in the corruption of Justice Thomas and co-conspirator Ginni Thomas lies the possibility of redemption for the high court, or the appearance of redemption, which is what matters right now for maintaining the social standing of half the country.
The possibility of (the appearance of) redemption arises from two things that happened simultaneously but randomly. One is Thomas’s corruption. (We can thank ProPublica.) The other is a set of rulings by renegade judges trying to outlaw abortion by invalidating rules that govern whether and how pregnant people access the abortion pill.
The court had paused these rulings, the first time two Fridays ago, then Wednesday, finally last night. The Times said it “halted steps that had sought to curb the availability of mifepristone as an appeal moves forward: a ruling from a federal judge in Texas to suspend the drug from the market entirely and another from an appeals court to impose significant barriers on the pill, including blocking access by mail.”
None of this is to say the fate of mifepristone is secure. It is to say that the court did not automatically side with renegade judges, which is what we might expect from a rightwing supermajority that’s been compromised by its eldest member. It is also to say that despite Justice Thomas appearing to be OK with admitting to his corruption, other justices seem less inclined. They won’t brag. They’d rather hush it up.
Adding to the hush-it-up incentive is a recent request by the chairman of the Senate Judiciary Committee for a voluntary interview with Chief Justice John Roberts. The request came after ProPublica’s twin blockbusters, one report about Justice Thomas getting lavish gifts from a billionaire and the other about the same billionaire buying properties owned by the Thomas family, including the house his mom still lives in.
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NPR said that Dick Durbin “said in a letter to Roberts on Thursday that recent reports found the justices are ‘falling short’ of the ethical standards they and other public servants are supposed to follow.”
“The status quo is no longer tenable,” Durbin said.
I don’t believe Roberts cares about the court’s public image. If he did, he’d never have allowed the court to overturn Roe. Most people most of the time want abortion to be legal even if they hate it. Roberts knows that by striking down Roe, the court enshittified its public image.
What I do believe is that Roberts cares about the public caring about whether he cares about the court’s public image. The more we care about his caring about something so noble, the less inclined we are to believe the rightwing supermajority would rather rule by judicial fiat.
What’s at stake isn’t his reputation but a public understanding of the court that usually neuters public suspicions of it. Those suspicions have been re-stoked by ProPublica and by Justice Thomas coming so close to saying me and Ginni, we’re dirty – whaddaya gonna do about it?
“You don’t want the political branches telling you what the law is,” Roberts said after the court struck down Roe, “and you don’t want public opinion to be the guide about what the appropriate decision is.”
But given what’s at stake, we can argue that he means the opposite – to maintain confidence in the court’s public image, it’s in the court’s interest to let the political branches tell it what the law is and to “want public opinion to be the guide about what the appropriate decision is.”
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To put this in a cruder way, overturning Roe made a situation bad. Renegade judges made it worse. Now here’s Justice Thomas, sticking his dick in the mashed potatoes. Time to back off before it’s too late.
By the time the Supreme Court hears all cases related to the mifepristone, the ground may have shifted enough so that siding with judges who want to play doctor doesn’t look corrupt, as it does now.
But I’m skeptical of the ground shifting that much.
Even people barely paying attention to the corruption of Justice Thomas know something is rotten when the highest court in the land permits the decimation of the social standing of half the country.
We shouldn’t expect a corrupt court to reform itself. We can, however, expect a corrupt court to pretend that it isn’t corrupt. From that makebelieve may come a ruling that maintains some social standing.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.
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