When Ginni Thomas rails against Washington elites, does it include her husband?

The law, lawyers, and the court.
Oct. 9 2010 1:34 PM

The Battle Cry of a Supreme Court Wife

When Ginni Thomas rails against Washington elites, does it include her husband?

Ginni Thomas. Click image to expand.
Ginni Thomas

RICHMOND, Va.—Of all the disclosures in the fascinating new biography of Justice William Brennan by Seth Stern and Stephen Wermiel, one of the most powerful is this: The worst job in the entire history of the world has to be Supreme Court wife.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Stern and Wermiel paint a searing picture of an alcoholic Marjorie Brennan, who evidently spent years both drinking and dying at the same time. Or worse, Justice Felix Frankfurter's "desperately unhappy and incapacitated wife, Marion" who, "suffered from psychological problems since the 1920's and had been largely confined to her second-story bedroom since the 1940's."

Unlike the wives of regular politicians, Supreme Court wives can't go out on the stump for their husbands. They can't defend them in the media. They can't do much more than allow the photographers in to see the window treatments and the fruit bowls. As Stern and Wermiel describe it, at the Red Mass in 1963, after the Bishop of Richmond slammed the Supreme Court for its recent school prayer decisions, Marjorie Brennan finally lost it. On leaving the church she excoriated the bishop: "You're not fit for my husband or me to kiss your ring." It seems to have been a single act of public rebellion in a lifetime of swallowed insults and attacks on her husband.

Virginia Lamp Thomas, wife of Supreme Court Justice Clarence Thomas, has learned this lesson well. As she addresses the Virginia Tea Party Patriots Convention Friday night, she wants it to be perfectly clear that nobody is going to lock her in the attic anytime soon. She's fighting for what she believes in, and for that she should get enormous credit.

But what, one wonders, might happen if she prevails?

Thomas is an extraordinarily youthful 53, as she takes the main stage in Richmond's downtown convention hall. Her hair is a honey-colored bob and her jacket is a cheerful red. She greets several hundred Virginia Tea Partiers (2,000 participants are expected, the largest such gathering ever) with "Hello Patriots!"  Thomas is charming, even girlish in her delivery. She opens with the story of the goose and the golden egg, and segues gently into a warning that "we are ruled by an elite that thinks it knows better than we know and tells us what to do."

There is very little specificity in Thomas' Tea Party indictment, which targets Washington's "political class" and their generalized "power grab" from a Washington that "doesn't believe the founders and think they know best." Perhaps Thomas can't speak in specific detail, or perhaps the idea is that there is no detail, no clear explanation of how the current elites are worse than the previous elites. Perhaps it's enough to allude to the collective certainty that "freedom has never been more fragile" and that "in my lifetime it's never been this bad." Thomas explains, to much applause, that a Tea Party member's neighbors either believe he is crazy, or a hero, that "people either see it or they don't."

She talks of "reclaiming America" and of a current government that "sees the Constitution as an impediment to having power over our lives." There is a code here, about being unable to choose one's doctors and the deceptions of the mainstream media, but Thomas seems to be speaking only in the spaces between Tea Party particulars, especially when it comes to the Supreme Court.

 Thomas serves up a much-cheered slam on the "mainstream media" which "used to pride itself on gotcha journalism, but either went to sleep or became lapdogs for the other side." That's followed with the warning that people with an "extreme point of view" have "burrowed into the media, our churches, schools and publishing houses." There is a call to reject traditional media and turn to cable television, the Internet and Liberty Central—the Website Thomas founded to empower citizens to empower themselves. Thomas warns that the "hard left is working right now to dismiss us, demoralize us, and destroy our good candidates."  She then offers eight "habits of highly effective citizen patriots" which include sprinkling more AM radio into one's media diet (she recommends Rush Limbaugh and Mark Levin by name) and connecting with others and prayer. She explains that the opposition wants you "demoralized, tricked and fooled," but the answer is to focus on the fact that "ordinary people armed with truth can change the world." The crowd surges to its feet, as she tells them which incumbent Democrats to defeat in Virginia's November elections.

One may well wonder who the "they" are in all this. Thomas never says. The name "Obama" comes up only once, toward the end. She says that while she has lived in Northern Virginia for 30 years, she is still just the girl from Omaha; she doesn't "feel like the political class" and she has been "working with you and praying with you" and not the elites in government.  But at some point, honesty requires an admission that whether or not she and her husband are willing to accept the honor, Supreme Court justices are about as elite as Washington elites can get. If ever there were nine people who are actually paid to think they know better than the rest of us, Supreme Court justices are it. If ever there are nine people structurally insulated from the anger and the polls and AM radio and citizen outrage, her husband numbers among them.

It's not completely clear that the assembled crowd agrees to exempt the high court from its rather fierce anti-Washington elites sentiment, either. The two speakers before Thomas excoriated, respectively, the Supreme Court's reading of the commerce clause in Gonzales v Raich (with Justice Scalia concurring) and "a Supreme Court that has nullified the Tenth Amendment." But perhaps when the Tea Party assails the current Supreme Court, they actually mean to exempt Justice Thomas. Or perhaps when Ginni Thomas warned George Stephanopoulos last week that a "big tidal wave is coming" what she meant was that it was a medium-sized tidal wave that would wipe out the House, the Senate, the executive branch and the eight other seats at the Supreme Court.

The New York Times reports that there are novel financial and ethical questions raised by Ginni Thomas' outsized activism, and in my view they are overmatched by her right to be her own person and advocate for her own causes. If the alternative is being locked up in a bedroom somewhere or screaming impotently at one's priest, as did Marjorie Brennan, it's a far better world when a justice's wife can speak her mind and rattle America's chains while doing so.

Questions of ethics, and appearances are one thing; however, questions of disclosure are a bit trickier. As the Times reports, Ginni Thomas accepted "large, unidentified contributions for Liberty Central" and "because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors." And the justice who has taken the strongest stand against disclosure of campaign contributions is Clarence Thomas, who argued in his concurrence in Citizens United that the court did not go far enough, and the "disclosure, disclaimer, and reporting requirements" of the McCain-Feingold law should be deemed unconstitutional as well.

Thomas worries that disclosure leads to harassment and retaliation from angry citizens or legislators, relying on the experiences of proponents of anti-gay-marriage initiatives who were harassed for their beliefs. He took a similar position late last term in Doe v. Reed, a case about public disclosure and Washington state's public records act. Listening to Ginni Thomas' certainty that there is a vicious, nameless "them" out to "demoralize," "destroy" and "intimidate" good Americans, it's clear this siege mentality is something they share.

Justice Thomas has made an intellectual career out of doubting insiders and embracing the angry and the outraged.  Perhaps he has earned that. I don't doubt that both Clarence and Ginni Thomas believe that there is a "hard left" that seeks to harass and destroy them and people like them. But there is no "us" vs. "them" at the Supreme Court. There's no "masses" vs. "elites" among the nine justices. The Tea Party movement thrives and relies on the David and Goliath narrative and so does the Thomas family. But it's not a narrative that serves the Supreme Court very well. The court doesn't embrace the grungy masses; it fears them. That's the reason it just sealed its front doors. Everything Ginni Thomas is agitating for, and she is very clearly agitated, counsels against the lifetime tenure her husband has both earned and enjoyed. If Ginni Thomas is serious about opposing privilege and experience and institutional wisdom and elitism she must, in all fairness, oppose the court above all.

In the single weirdest moment of her speech Thomas thanks the Tea Party organizers for providing the convention with "so much security and so much help here—it's a pleasure to come." But no amount of security or help will protect against the tidal wave Thomas is fomenting, and it's not at all clear what happens to her husband, when the court gets swept up in its path.

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